Volume 217 — Massachusetts Reports

<p>Nuisance. Negligence, Of one controlling real estate. Evidence, Presumptions and burden of proof.</p> <p>One who, as lessee, has full control of a building, which is constructed to the line of a street and has a slate roof sloping toward the street, is bound to keep the premises in such a condition that travellers on the street shall not suffer injury, and is liable if, because of a breach of that duty, injuries are caused to such a traveller by a piece of slate falling from the roof.</p> <p>If at the trial of an action for personal injuries caused by a piece of slate falling upon the plaintiff from the roof of a building immediately adjoining a highway, it appears that the jury took a view of the premises, that the roof of the building sloped toward the highway and that the plaintiff when he was struck was opposite the middle of the building and ten feet from the line of any adjoining building, and three witnesses including the defendant testify that they saw the slate fall but do not state that it fell otherwise than in a vertical line, and there is no evidence to indicate that the falling of the slate was due to the act of a third person, or that the slate was blown by the wind, the trial judge is warranted in refusing to order a verdict for the defendant and in submitting the case to the jury, who are warranted in inferring that the slate which struck the plaintiff fell from directly above him, and in finding for the plaintiff.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Jenney, J. The report showed that the case was submitted to the Industrial Accident Board upon an agreed statement of facts, which included the facts stated in the opinion, the question involved being whether the insurer had the right under the workmen’s compensation act to deduct from the compensation due the widow as the sole dependent of the employee the additional payments made to the employee during the first twelve weeks after his injury and before his death for the loss by severance of the third finger of the right hand at the middle of the metacarpal bone under § 11 (d) of Part II of St. 1911, c. 751.</p> <p>Besides the additional payments mentioned above, the employee had received from the insurer from the date of the injury, January 17, 1913, until his death on April 2,1913, compensation for his total incapacity to work equal to one half his average weekly wages in accordance with the provisions of St. 1911, c. 751, Part II, ■§ 9. No question was raised in regard to these payments.</p> <p>The judge made a decree finding that the average weekly wages of the deceased, as decided by the Industrial Accident Board, were $8.50 and that a weekly compensation of $4.25 was due from the insurer to Ida S. Nichols, widow and dependent upon Charles Nichols, deceased, for a period of three hundred weeks from January 17,1913, the date of the injuries, and ordering the insurer to pay to Ida S. Nichols such weekly compensation in* accordance with this finding. The insurer appealed.</p>

<p>Appeal to the Superior Court under St. 1911, 'c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Pierce, J. The material facts are stated in the opinion. The judge made a decree "that the findings of the Industrial Accident Board be approved, and that in accordance therewith a decree be entered that Patrick ICeaney, being a farm laborer, and not being insured by his employer, Daniel L. Tappan, is not entitled to compensation under the workmen’s compensation act.” The employee, Patrick ICeaney, appealed. T. F. Collins, for the employee.</p>

<p>Contract, What constitutes, Validity. Attorney at Law. Champerty.</p> <p>In an action against the members of a firm of attorneys at law to recover a certain compensation, alleged to have been agreed upon, for services in procuring evidence and in testifying as an expert, exceptions were sustained to the ordering of a verdict for the defendants, because the testimony of the plaintiff, although contradicted in all respects by the testimony of the defendants, would, • if believed, in connection with other evidence, warrant findings that contracts substantially as alleged in the declaration were made in behalf of the defendants by an attorney at law employed in their office and afterwards were ratified by one of the defendants acting for all of them with full knowledge of the material circumstances, that the contracts thus made by the defendants were made by them in their personal capacity and not merely as the agents of their client, that the conditions under which the plaintiff was to be paid the stipulated sums had been fulfilled and that he was entitled to recover.</p> <p>A contract made by a firm of attorneys at law, to pay a person $300 for lawfully procuring evidence to be used in a certain action and $50 a day for testifying in the action as an expert if a verdict of $1,500 or more is returned, is not champertous.</p>

<p>Contract, What constitutes, Consideration. Husband and Wife. Frauds, Statute of.</p> <p>An oral promise of a widow to pay a bill for plumbing work furnished during the lifetime of her husband under an express contract with him for a house which then belonged to the promisor’s mother and in which after her husband’s death she acquired an interest upon the death of her mother, cannot be enforced, because it is without consideration and also because it is an oral promise to answer for the debt of another which under R. L. c. 74, § 1, cl. 2, cannot be proved without a memorandum signed by the party to be charged.</p>

<p>Contract against Sarah P. Porter, the wife of Ernest J. Porter, who was joined as a defendant, the defendant Sarah being alleged to be possessed of property to the amount of $2,000 or more, for a debt of. $87.78 alleged to be due to the plaintiff for necessaries furnished with the defendant Sarah’s knowledge and consent to herself and her family, according to an account annexed setting forth the items of a bill for coal furnished at various dates from August 13, 1910, to March 30, 1911. Writ in the First District Court of Essex dated January 3, 1912.</p> <p>The answer, besides a general denial and a general allegation of payment, alleged that, if the defendant Sarah P. Porter ever owed the plaintiff any debt for necessaries, it had been paid fully by a negotiable promissory note signed by the defendant Ernest J. Porter and payable to the plaintiff.</p> <p>On appeal to the Superior Court the case was submitted to Fox, J., upon an agreed statement of facts, as follows:</p> <p>The defendant Sarah P. Porter was the wife of the defendant Ernest J. Porter. The items in the account annexed to the plaintiff’s declaration were all for necessaries furnished to Ernest J. Porter with the knowledge and consent of the defendant Sarah P. Porter and used by the defendants as fuel in the house occupied by them jointly. The defendant Sarah P. Porter had property to the amount of $2,000. On December '20, 1910, the defendant Ernest J. Porter gave to the plaintiff a negotiable promissory note for $342.90, payable in three months from date. This note covered the full amount of the indebtedness of Ernest J. Porter to the plaintiff at that time, including the first six items in the account annexed. At the time this note was given, the plaintiff receipted for the full amount due as follows: “Rec’d Payment by 3 mos. note Dec. 20, 1910, E. S. Baldwin,” including the six items aforesaid.</p> <p>On May 20,1911, when the note for $342.90 became due, there remained unpaid on that note only $225, certain payments having been made on the note. That note was cancelled and delivered up to the defendant Ernest J. Porter, and a new negotiable promissory note for $279.08 was given by the defendant Ernest J. Porter to the plaintiff, payable in three months. This sum of $279.08 was obtained by adding together the amount of $225 remaining unpaid on the first note and the last six items in the account annexed to the plaintiff’s declaration, and also a small sum of unpaid interest on the first note. The last six items were receipted for on June 20,1911,as follows: “Received payment, June 20,1911, E. S. Baldwin Co., Per R. N. C.” On July 24, 1911, when the note for $279.08 became due, the defendant Ernest J. Porter paid in cash on that note the sum of $56.87 and gave a new negotiable promissory note to the plaintiff for $225 due October 22, 1911. On October 22, 1911, the note was not paid, and on April 9, 1912, the plaintiff in this action brought an action against the defendant Ernest J. Porter alone by trustee process and recovered judgment for the full amount of the indebtedness of Ernest J. Porter to the plaintiff. It therefore was agreed that no judgment should be entered against that defendant Ernest J. Porter in the present action.</p> <p>The judge made the following memorandum of decision:</p> <p>“Upon the agreed facts the defendant Sarah P. Porter is clearly liable under St. 1910, c. 576, unless the plaintiff by taking her husband’s notes discharged the debt. The burden of proving payment rests on the defendant. I find that having regard to the form of the first receipt, 'Received payment by 3 mos. note,’ and to the fact that the effect of payment would have been to provide [deprive] the plaintiff with [of] the security which the statute gave him, the debt has not been paid.”</p> <p>The judge found for the plaintiff against the defendant Sarah P. Porter in the sum of $89. Judgment was entered accordingly; and the defendant Sarah P. Porter appealed.</p> <p>St. 1910, c. 576, provides that “a married woman shall be liable jointly with her husband for debts due, to the amount of one hundred dollars in each case, for necessaries furnished with her knowledge or consent to herself or her family, if she has property to the amount of two thousand dollars or more.”</p> <p>The case was submitted on briefs.</p>

<p>Complaint, received and sworn to in the Municipal Court of the City of Boston on April 13, 1912, for a violation of article 1, § 3, of the street traffic regulations and rules for driving, in Boston, as stated in the opinion.</p> <p>On appeal to the Superior Court, the case was tried before Chase, J. The defendant admitted that, if the traffic regulations were valid, he was guilty of the offense charged, and made the requests for rulings quoted in the opinion. ■ The rulings were refused; and the defendant was found guilty and alleged exceptions.</p>

<p>Negligence, Ferryboat. Ferry. Evidence, Relevancy and materiality, Presumptions and burden of proof.</p> <p>At the trial of an action against a corporation operating a ferryboat on an arm of the sea for personal injuries caused by the plaintiff, as he was leaving the boat, stepping into a space between the boat and the landing float, there was evidence tending to show that by the use of a supplemental drop or gang plank all danger from the existence of such a space, caused by the swinging of the boat with the tide and the action of the waves on its stem, would be obviated, and evidence was admitted, subject to exceptions by the defendant, tending to show that, with the knowledge of the defendant’s superintendent, such appliances had been in operation for ten years on other ferryboats in the same harbor and under conditions similar to those at the defendant’s ferry. Held, that the evidence was admissible as tending to show that such appliances were practicable and necessary and, in the exercise of reasonable care for the safety of its passengers, should have been adopted by the defendant.</p> <p>If, at the trial of an action against a corporation operating a ferryboat on an arm of the sea for personal injuries caused, as the plaintiff was leaving the boat, by his falling into a space between the boat and the landing float, there is evidence warranting findings that the space occurred because the mooring chains had not been fully wound upon the drums, and there also is evidence tending to show that, as the defendant’s superintendent well knew, all danger from the existence of such a space, which might have been found to have been due to the action of the tide and waves at the stern of the boat, could have been obviated by the use of a supplemental drop or gang plank, and it appears that the plaintiff previously had travelled by the same ferry, and, when he was injured, was not looking closely at his footing, the questions, whether the injury to the plaintiff was caused by negligence of the defendant, and whether the plaintiff was in the exercise of due care, are for the jury.</p> <p>Shorn the fact that, at the time when a passenger on a ferryboat was injured by stepping into a space left between the boat and the float at which it was docked, “the people were half out of the boat,” a jury is warranted in inferring that such disembarkation had taken place in the usual manner and under the direction and upon the invitation of the servants and agents of the corporation operating the ferry.</p>

<p>Tort for personal injuries alleged to have been caused, while the plaintiff was a passenger on a train of the defendant, by a missile which crashed through a window and struck her. Writ dated August 22, 1910.</p> <p>In the Superior Court the case was tried before Sanderson, J. The plaintiff alone testified in her own behalf, and her testimony and that of the baggage master of the train, who, with others, testified for the defendant, are described in the opinion.</p> <p>At the close of the evidence, by agreement of the parties the case was submitted to the jury for assessment of damages alone. The jury found that the damages suffered by the plaintiff amounted to $350. The judge then ordered a verdict for the defendant and reported the case for determination by this court, judgment to be entered for the defendant if the ruling was right, and, if it was wrong, judgment to be entered for the plaintiff in the sum of $350.</p>

<p>Negligence, Of one controlling real estate, Licensee.</p> <p>The owner of a building, while it is in the possession of a lessee who is in entire control of it, is not liable to one who, while upon the roof of the building by permission of a lessee, falls through a defective grating and is injured, where it does not appear that the grating was in a dangerous condition when the premises were let.</p> <p>The employees of a contractor, who was erecting for the lessee in control of a hotel a sun parlor upon the roof, used, with the knowledge and acquiescence of the lessee, a penthouse, which covered an unused elevator well, for housing tools and materials and clothing and as a place for their lunch, entering and leaving it through a window opening upon the roof. The opening into the elevator well was covered with a wooden grating. One of the employees, after having worked on the roof for from six to eight weeks, in crossing the floor of the penthouse from the window to get his lunch, which he had left there, stepped upon the grating, which he thought, and had reason to think, was a metal grating strong enough to bear his weight, the grating broke and he fell to the bottom of the well. In an action against the lessee for personal injuries so received, it was held, that there had been no breach of duty on the part of the lessee toward the plaintiff, because the plaintiff was a mere licensee, and the defendant had not been guilty of any wanton or reckless conduct toward him.</p>

<p>Contract upon an account annexed for a commission for procuring the leasing of two stores in the church building on Main Street in Marlborough belonging to the defendant, a religious corporation, to the Woolworth Company, a business corporation. Writ dated September 30, 1911.</p> <p>In the Superior Court the case was tried before Keating, J. It appeared that, in the negotiations as to the lease, the defendant, which is a religious corporation organized under St. 1823, c. 96, had acted through a special committee appointed at a parish meeting. There was no evidence that a vote was taken at any meeting of the parish or of the committee authorizing the hiring or employment of the plaintiff. The secretary of the committee testified that he reported to the special committee the substance of all conversations with the plaintiff and submitted to the committee the letters received from him. On direct examination by the defendant’s attorney, each member of the committee, subject to an exception by the plaintiff, was asked: “Q. Were all your acts and dealings as a member of this committee with the understanding that you were dealing with the Woolworth Company as far as it was through Mr. Gordon [the plaintiff] as agent of the Woolworth Company? ” The answer of the witness in each instance was “Yes.”</p> <p>The bill of exceptions stated: “The jury, under instructions by the court to which no exceptions were taken by the plaintiff, and the plaintiff stating that the court had given all of his requests, found for the defendant.” The plaintiff alleged exceptions to the admission of the evidence described above.</p> <p>Other facts are stated in the opinion.</p>

Petition, filed on April 14, 1911, and amended on October 15, 1912, to enforce a mechanic’s lien for labor and materials furnished in building the foundations for certain houses on Ken-wood Street in Brookline on land of the respondent. In the Superior Court the case was tried before Crosby, J. At the trial the respondent asked the presiding judge to make the following rulings: 1.

<p> Workmen’s Compensation Act. </p> <p>Under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, e. 571, § 14, on an appeal to this court from a decree of the Superior Court upon a review of a decision of the Industrial Accident Board, the decree appealed from has "the same effect ... as though rendered in a suit duly heard and determined by said court, except that there shall be no appeal therefrom upon questions of fact,” and the finding of the Industrial Accident Board on any question of fact has the same weight and effect as the verdict of a jury; so that a decree of the Superior Court founded on findings of the Industrial Accident Board that an employee was incapacitated for work during a period between two dates named in consequence of his physical injuries and nervous shock and disturbance resulting from an injury for which he was entitled to compensation, is not to be disturbed if, as in the present case, there was evidence on which the finding could have been made.</p>

<p>Contract, with a count in tort, to recover an agreed compensation for the use of certain steamfitter’s tools and damages for injury to the tools. Writ dated December 3, 1909.</p> <p>In the Superior Court the case was tried before Dana, J. It appeared that the plaintiff was a steamfitter whose principal business was the equipment of greenhouses with heating apparatus, and that the defendant was a resident of Chicago who had a large estate in the southerly part of Plymouth known as Indian Hill Farm, upon which one Smith, mentioned in the opinion, was employed as head gardener. The material facts shown by the evidence are stated in the opinion.</p> <p>The defendant asked the judge to make the following rulings:</p> <p>“ 1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. Every person dealing with an assumed agent is bound at his peril to ascertain the nature and extent of the agent’s authority.</p> <p>"3. The fact that the agent assumes to exercise a delegated power is sufficient to put the person dealing with him upon his guard and [to require him] to satisfy himself that the agent really possesses the pretended power.</p> <p>“4. If one, having relied upon the pretended power of an agent, seeks to hold the alleged principal responsible, he must be prepared to prove, if authority be denied, not only that the agency existed, but that the agent had the authority that he exercised.</p> <p>“5. The authority of the special agent being in its nature limited, its scope must not be exceeded, and the agent’s authority must be strictly pursued; and if it is not, the principal will riot be bound.</p> <p>"6. The scope of the general agent’s authority must not be exceeded. On acting beyond the scope of his authority he binds only himself.”</p> <p>The judge refused to make these rulings except so far as they were incorporated in his instructions to the jury, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $336.75. The defendant alleged exceptions.</p> <p>The case was submitted on briefs. because he was a union man or whether, as the defendant contended, he was discharged for misconduct.</p>

<p>Conteact for the alleged breach by the defendant of a contract in writing dated August 27, 1910, by which the defendant, doing business as the Massachusetts Engraving Company, agreed to employ the plaintiff for one year from the date of the contract. Writ in the Municipal Court of the City of Boston dated October 24, 1911.</p> <p>On appeal to the Superior Court the case was tried before Keating, J. The evidence showed that the plaintiff worked under the terms of the contract until February 3, 1911, when he was discharged by the defendant, and it was a material issue in the case whether, as the plaintiff contended, he was discharged</p> <p>The plaintiff testified that he lived in Rochester, New 'York, up to August 23, 1910; that he had a letter from the defendant in regard to coming to Boston and entering the employ of the defendant in July, 1910; and that after the receipt of this letter one Hickman called upon him. He was asked, “Well, what did Mr. Hickman say?” The question was objected to, and, for the purpose of showing the authority of Hickman, a letter written by the defendant to the plaintiff on August 10, 1910, was introduced in evidence. The letter referred to Hickman as follows: “I understood from Mr. Hickman that the probabilities were you would come at once.” After the introduction of this letter in evidence the question was repeated, “Now what did Mr. Hickman tell you when you saw him?” The question was objected to on the ground that the statement in the letter was not sufficient to qualify Hickman as an agent to make declarations which would bind the defendant as principal. The judge admitted the evidence and the defendant excepted.</p> <p>The conversation, as testified to, was in part to the effect that the plaintiff stated that he was informed that there were labor troubles in Boston, and that Hickman represented to him that there was no trouble in the defendant’s shop. This was all the evidence bearing upon the question of Hickman’s agency at' the time the evidence was introduced. Later, in the cross-examinatian of the defendant, it appeared that Hickman was connected with another company, that he was a friend of the defendant, that he had no authority to hire the plaintiff, that he was sent to locate him and that he was directed to call on the plaintiff and to let the defendant know whether he was coming or not. The evidence showed that, after the interview between the plaintiff and Hickman, the plaintiff and the defendant carried on their negotiations by correspondence and that the plaintiff came to Boston and •entered into the contract with the defendant directly.</p> <p>The jury returned a verdict for the plaintiff in the sum of $394; and the defendant alleged exceptions to the admission in evidence of the plaintiff’s conversation with Hickman.</p>

<p>Negligence, Employer’s liability, In maintenance of electric light. Electricity.</p> <p>In an action, against a corporation engaged in the construction of a battleship, by a machinist’s helper in its employ, for personal injuries sustained by reason of the sudden extinguishment of the electric light in the fire-room of the ship, where the plaintiff had been working and was in the act of stepping from a platform to a staging, so that in the darkness he missed his footing and was injured, it could have been found upon the evidence that the fire-room was lighted only by one large enclosed arc light, that during the week before the accident this light at different times flickered for a few seconds, “going out and coming in again,” and that at the time of the accident it was out for about fifteen minutes while the lights in the engine room and other parts of the ship remained unextinguished. An expert testified that the flickering of the arc light and later its going out and remaining so indicated either a defective insulation of the wires, which probably had existed at least for five or six days before the accident and could have been revealed by an inspection of the wires, or else a defect in the lamp itself which probably had existed for a month. Held, that there was evidence warranting a finding that the light went out owing to a defect in the apparatus which the defendant might have discovered and remedied by the exercise of reasonable care.</p>

<p>Insurance, Life, Endowment. Contract, Validity.</p> <p>In 1905 an insurance company, organized under the laws of the State of New York, in consideration of $3,946.25 paid to it by a certain person, made a contract in writing to pay to him the sum of $5,000 in case he was living at the end of five years, the contract providing that, if the person should die within the five years, it should “ cease and become null and void, and the premium paid” thereon should “remain the property of the company.” Held, that the contract was not an insurance contract within the definition contained in R. L. c. 118, § 3, and therefore was not rendered invalid merely by a failure to comply with the requirements of §§ 65, 71 and 73 of that chapter as to a ; medical examination and certain formalities in the application and the contract. Held, also, that the contract, which was within the corporate powers of the company, was valid, not being prohibited by statute and not being fraudulent or unconscionable.</p>

<p>Negligence, In use of automobile, In use of highway, Causing death.</p> <p>One who drove an automobile at the rate of from seven to ten miles an hour in the middle of a smooth, hard and straight boulevard forty feet wide, upon which there was no other vehicle than a bicycle which was proceeding in front of him in the same direction close to the curb on the right hand side of the road, may be found to have been negligent if, while looking off towards his left and not sounding any horn or giving any warning of his approach, he did not see the bicycle until, as the rider of the bicycle was turning to his left to cross the street, he was at the right hand forward .comer of the automobile and two or three feet ahead of it, and the rider of the bicycle was run over and killed.</p> <p>Under the same circumstances, if the rider of the bicycle was from twenty-five to one hundred and fifty feet from the automobile when he turned to cross the road, the question, whether or not he was in the exercise of due care, is for the jury in an action to recover for his conscious suffering and death.</p>

<p>Petition, filed in the East Boston District Court on March 28,1910, for the enforcement of mechanics’ liens claimed by four petitioners upon a tract of land on Wilshire Street and Paine Street in Winthrop, which included lots 20 to 25, both inclusive, as shown on a “Plan of Winthrop Park.” The petition alleged that Joseph F. Adams was the owner of the premises when certain contracts were made by the petitioners and that he was the owner at the time of the filing of the petition. Edmund K. Baker also was a respondent.</p> <p>On appeal to the Superior Court, the petition was heard by Hall, J.</p> <p>It appeared that in April, 1908, the premises were owned by one Wilshire, and then were subject to a mortgage, which is designated in the opinion as the first mortgage.</p> <p>The record states that in August, 1908, Olaf P. Chronquast gave a mortgage of the premises to the respondent Edmund K. Baker, but it nowhere describes whence Chronquast received title. This mortgage is referred to in the opinion as the second mortgage.</p> <p>In November, 1908, lots 20 and 21 were released from the first mortgage to Chronquast.</p> <p>On October 4, 1909, Baker foreclosed the second mortgage by entry and sale, and on October 15 the premises were sold to the respondent Adams. The deed pursuant to the sale was executed and acknowledged by Baker and was delivered to John E. Eaton, Esquire, “who was agent and attorney for Baker, attorney for Chronquast and . . . Adams.”</p> <p>On October 17, 1909, the petitioners made agreements with Chronquast, who acted for Adams, for the performance of labor in the erection of buildings on the lots. Three of the petitioners began work on October 21.</p> <p>On October 22, 1909, Adams delivered to Mr. Eaton a mortgage of all the lots, described as one parcel. Mr. Eaton within ten minutes thereafter recorded the foreclosure deed of Baker to Adams and the mortgage of Adams to Baker simultaneously.</p> <p>On October 26 the fourth petitioner began work.</p> <p>All the petitioners performed labor on five separate houses situated on the premises, each of the houses being on one of the lots which were comprised in the premises. There was no evidence in the case as to the amount of labor performed by the petitioners or any of them upon any separate or individual house or lot.</p> <p>By a foreclosure and sale under the first mortgage, lots 22, 23, 24 and 25 were sold in September, 1910, to one Garrettson, who on November 15, 1910, conveyed them to Baker.</p> <p>, On November 8, 1910, after a sale in foreclosure of the mortgage of Adams to him, Baker conveyed all of the lots as one parcel to himself.</p> <p>The judge found and ruled that the petitioners were entitled to establish their respective liens upon the equity of redemption in the premises held by Adams subject to the first, or Wilshire, mortgage on that portion of the premises designated as lots 22, 23, 24 and 25, and subject also to the mortgage given by Adams to Baker upon the entire premises. The petitioners and the respondent Baker alleged exceptions.</p>

<p>Two actions of tort, the first for personal injuries alleged to have been suffered by the plaintiff when a horse that she was driving near Ellicott City in Maryland became frightened by reason of the alleged negligence of a servant of the defendant in the operation of an automobile. The second action was by the husband of the plaintiff in the first for consequential damages. Writs dated October 10, 1910.</p> <p>In the Superior Court the cases were tried together before Sanderson, J.</p> <p>The testimony of McNeil, referred to in the opinion, which, subject to an exception by the plaintiff, was admitted in evidence “as bearing only on” Edmund M. Gillet’s “own case,” was as follows:</p> <p>“I talked to Mr. Gillet and expressed regret that such a thing happened-and he said that he has been cautioning his wife about that horse. ... He said that on different occasions the horse shied at automobiles and that he told her if she could [to] sell the horse.”</p> <p>The evidence as to statements of the chauffeur after the accident, referred to in the opinion, which was excluded subject to exceptions by the plaintiff, was in the testimony of Mrs. Gillet and was to the effect that the chauffeur had talked on the telephone with his employer immediately after the accident and had stated that he “had an accident with Mrs. Gillet and another lady and a child, and wanted to know if they wanted their doctor to come to see” Mrs. Gillet, “or what he should do, and after he talked to them he called up Mr. Gillet and asked him to bring a doctor at once.”</p> <p>Other material facts are stated in the opinion. There were verdicts for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Petition, filed in the Superior Court on December 7, 1908, for an abatement of the tax assessed by the respondent upon the petitioner, a Pennsylvania corporation, for the year 1908.</p> <p>The case was referred to Wellington Wells, Esquire, as commissioner, and afterwards was heard by Chase, J. It was agreed by the parties that the findings of fact contained in the report were to be taken as true.</p> <p>It appeared that the petitioner had filed a list, properly sworn to, of the real and personal property of every kind and description owned by it on May 1, 1908, and subject to taxation. This list was accepted by the assessors.</p> <p>The assessors assessed the property of the petitioner in the following amounts:</p> <p>On its real estate the sum of $46,400.</p> <p>On its manufactured material the sum of $25,000.</p> <p>On its machinery the sum of $10,750.</p> <p>On its horses, wagons and harness the sum of $7,500.</p> <p>On “all other ratable property” the sum of $44,500.</p> <p>The petitioner did not contest the valuation of the real estate, machinery and the horses, wagons and harnesses. The commissioner found that the fair cash value of the manufactured material was $17,500. He also found “that the foregoing four items comprise all the tangible property of the plaintiff located in said Revere, and that there was no other ratable property belonging to said corporation and situated in said town of Revere which was tangible or visible.”</p> <p>The respondent at the trial offered evidence tending to show that in the item in the schedule entitled “all other ratable property” the valuation'as fixed by the assessors “was the full and fair valuation of the property . . . enumerated under the other four items . . . taken together and constituting a going concern located in the town of Revere, in contradistinction to the full and fair cash value of each individual item, irrespective of and distinct from its relation to the other items, and irrespective and distinct from the fact that it is part and parcel, as aforesaid, of a going concern, and that the full and fair cash value of said property enumerated as ‘all other ratable property’ was $44,500.” This evidence the judge excluded subject to an exception by the respondent. No other evidence was offered by the respondent.</p> <p>The respondent asked the judge to rule that, in determining for what amount execution should issue against the town, the town should be credited with the tax upon said $44,500 valuation, but the judge declined so to rule and rendered judgment for the petitioner in a sum based on the commissioner’s report. The respondent alleged exceptions.</p>

<p>Negligence, Street railway.</p> <p>If a passenger properly upon the running board of an open street railway car sees at some distance ahead a tip cart with two horses attached to it and a driver on the seat who can turn the horses quickly if necessary, and the horses are standing at such an angle that unless they are turned the pole of the cart will strike a person on the running board of the car, such passenger, in assuming that the motorman of the car and the driver of the cart each will exercise due care to avoid a collision and remaining where he is until he sees that a collision is probable and then making an unsuccessful attempt to save himself, when he is struck by the pole and injured, is not negligent as matter of law.</p>

<p>Contract, Performance and breach. Damages, In contract. Evidence, Admissions and confessions. Letter.</p> <p>In an action for the breach of a contract by which the defendant agreed to pay the plaintiff a sum of money upon his doing certain things, the plaintiff either may prove performance of his part of the contract or may show that the defendant’s repudiation of the contract made the further performance of the plaintiff’s part of the contract unnecessary or impossible, but the damages recoverable for a justifiable rescission are' not the same as those to which the plaintiff would be entitled on proving a full performance; and in the present case an instruction of a presiding judge, under which the jury could award to the plaintiff the amount of money to be paid him upon his performance of all the things required of him by the contract in case the plaintiff proved that the defendant repudiated the contract and thus excused him from further performance, is prejudicial error, upon which an exception should be sustained.</p> <p>An unanswered letter sent to the adverse party is not admissible to prove the truth of the statements contained in it, and the admission in evidence of such a letter, where the statements were prejudicial to the adverse party and it cannot be said that the error was harmless, is ground for sustaining an exception.</p>

<p>Contract by the treasurer of the city of Boston, for the benefit of one Abraham Leavitt, a judgment creditor, upon a joint and several bond given with a surety by the defendant Schapero as a constable of the city of Boston. Writ dated August 7, 1912.</p> <p>The defendants demurred to the writ and declaration, and also filed a plea in abatement.</p> <p>The causes assigned for demurrer were as follows:</p> <p>“1. Because the plaintiff does not set forth any right or cause of action substantially in accordance with the practice act.</p> <p>“2. Because said alleged cause of action does not entitle the plaintiff to recover.</p> <p>“3. Because it appears that the judgment complained about was rendered on July 1, 1912, and that execution thereon duly issued on July 3, 1912, and .that the execution was returned 'wholly unsatisfied’ and that the plaintiff’s writ in this action is dated August 7, 1912, and the plaintiff’s right of action, if any he had, does not begin till after the time has elapsed when said execution should be returned to court, and that said execution could not be returned to court 'wholly unsatisfied’ till after the expiration of or at the end of sixty days from the date of the issuing of said execution.</p> <p>"4. Because said action is premature.</p> <p>“5. Because the execution issued on the judgment complained about could not be returned 'wholly unsatisfied’ and was not returnable into court till the expiration of sixty days from July 3, 1912, and the plaintiff’s writ in this action was dated Aug. 7,1912, and said sixty days had not elapsed.</p> <p>“6. Because no action could be brought as against these defendants till after the expiration of the time allowed by law for the return of the execution, to wit, — sixty days after July 3, 1912.”</p> <p>The reasons for abatement set forth in the plea were as follows:</p> <p>“1. Because the plaintiff does not show.any right of action as against these defendants.</p> <p>“2. Because said writ is premature.</p> <p>“3. Because said alleged bond is not set forth.”</p> <p>In the Superior Court the case was heard by Fox, J., without a jury. He overruled the demurrer and the plea in abatement, and the defendants appealed. There was evidence of the following facts:</p> <p>The plaintiff’s beneficiary, Leavitt, recovered judgment for $176.14 damages and $62.23 costs on July 1, 1912, against the defendant Schapero on a declaration for conversion, the answer to which set up justification by virtue of a writ of the Municipal Court of the City of Boston issued in favor of the Broadway Extension Poultry Company against one Nemzoff. The judgment so obtained had not been satisfied in whole or in part. Execution issued on the judgment on July 2,1912. On August 7, 1912, the present action was begun, the writ being returnable on the first Monday of September, on which day, September 2, the writ and declaration were entered and the execution in the former action was filed in the clerk’s office. The officer’s return, indorsed thereon, was dated July 19, 1912, and was as follows: “By virtue of this execution I have this day demanded payment of this execution or any part thereof so I might satisfy the same. I also demanded of the within named defendant goods, chattels, lands belonging to him so I might levy upon to satisfy this execution or any part thereof, but said defendant refused to comply with my request.”</p> <p>Due demand for the payment of the judgment was made upon the defendant surety before the bringing of this action.</p> <p>At the trial, the defendant surety sought to introduce evidence in justification of the taking by the constable, and formally offered to prove “that the constable was justified in removing the goods under attachment on the writ of Broadway Extension Poultry Company, against Nemzoff, as the alleged mortgage thereon was a fictitious mortgage given by the owner Nemzoff to the plaintiff Leavitt, without consideration, and for the purpose of defrauding creditors of the then defendant owner and covering the aforesaid property from the reach of the said creditors and that said mortgage was void and of no effect and the attachment and removal thereunder, legal and justified.” This evidence was excluded by the judge, who ruled as matter of law that the judgment against the constable was conclusive on the surety.</p> <p>The defendant surety asked the judge to make the following rulings:</p> <p>“1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2, Upon all the evidence the finding must be for the defendant.</p> <p>“ 3. The surety is entitled to show that the taking by the constable was justifiable.</p> <p>“4. If the mortgage of Nemzoff to Leavitt was void and fraudulent, the constable was justified in taking the property under attachment and the defendant is not liable on the bond.</p> <p>“ 5. The question of the validity of the mortgage from Nemzoff to Leavitt is not res adjudicata in this suit.</p> <p>“6. The plaintiff must show that the conversion was under color of his office.</p> <p>“7. The execution in Leavitt v. Schapero was not formally or properly returned to Court.”</p> <p>To the fourth request the judge replied: “Record of judgment against constable conclusive against sureties.”</p> <p>To the sixth request the judge replied: “The fact is admitted.”</p> <p>To the seventh request the judge replied: “The fact is admitted but is immaterial.”</p> <p>The judge refused to make any of the- other rulings requested. He found for the plaintiff in the penal sum of the bond, and ordered that execution should issue for the sum of $253.96. At the request of the defendant surety he reported the case for determination by this court, including the questions presented by the appeals from the orders overruling the demurrer and the plea in abatement.</p>

<p>Workmen’s Compensation Act. Statute, Construction.</p> <p>On an appeal to this court from a decree of the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, the case must be decided upon the facts found by the Industrial Accident Board in their review of the report of the committee of arbitration.</p> <p>If the workmen employed by one, whose business was cleaning out catch basins, were accustomed to be transported in a wagon furnished by their employer to and from the catch basins to be cleaned, and such employees with the knowledge and consent of their employer could go back at the end of each day’s work in this wagon to the employer’s bam, if they wished to do so, this can be found to have been one of the incidents of their employment; and, if one of these workmen is injured while thus going home in the wagon at the end of his day’s work, his injury can be found to have been one “arising out of and in the course of his employment” within the meaning of the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 1.</p> <p>It here was said by Sheldon, J., in speaking of the interpretation of the workmen’s compensation act, that the provisions of the act are to be construed broadly rather than narrowly, citing a similar remark of Rtjgg, C. J., in Coakley’s Case, 216 Mass. 71. 73.</p>

<p> Workmen’s Compensation Act. </p> <p>On an appeal to this court from a decree of the Superior Court under the workmen’s compensation act, where the Industrial Accident Board, after adopting the findings of the committee of arbitration had found further facts on the statements of counsel and evidence presented before them, which they did not report, it was held, that their findings thus made were not open to revision as questions of fact, and that it could not be contended that as matter of law they were not warranted.</p> <p>Upon a claim under St. 1911, c. 751, Part II, § 7, by persons alleged to be dependents of an employee whose death resulted from personal injuries sustained in the course of his employment, if it appears that the employee at the time of his death had a wife and one child, both of whom were living apart from him, neither of them is “conclusively presumed” to have been wholly dependent upon the employee for support, and the question of their dependency must be determined by the Industrial Accident Board upon the evidence; and, if that board find that the wife was not dependent but that the child was partly dependent, an award of compensation to the child alone is proper.</p>

<p>Negligence, Of one controlling real estate, Causing death. Nuisance. Practice, Civil, Conduct of trial.</p> <p>The owner of a building in his control is not liable for the conscious suffering and death of a traveller on the adjoining sidewalk who was struck by a board falling from the roof of the building if the falling of the board was due to the act of a third person which the owner had no reason to anticipate.</p> <p>At the trial of an action for the conscious suffering and death of a traveller on a public way, who on a day in September was struck by a board which fell from the flat roof of a three story tenement house in the control of the defendant, it appeared that dining the previous summer boys had built on the roof and used a playhouse of boards, resting at one end on a three-board fence which was two or three feet from a wide coping which was about two feet above the roof at its edge toward the street. There was evidence as to wind and its effect upon the boards used by the boys, and that in the exercise of reasonable care the defendant should have known of the playhouse. One of the boys, called by the plaintiff, testified that on the day of the accident he had gone to the roof, had found the playhouse broken down and the roof boards resting, one end on the top of the fence and the other on the coping, that he had taken hold of the end of the boards to bend them down and pull them back, but that they slid away and fell to the street. It was one of these boards that struck the plaintiff’s intestate. The plaintiff made no attempt to prove any previous inconsistent statement made by this witness, and his testimony was uncontradicted. A verdict was ordered for the defendant. Held, that the verdict was ordered rightly, because it appeared that the plaintiff accepted the testimony of the boy as correct, and that that testimony showed that the falling of the board was not due to negligence of the defendant or to acts of any one which he had any reason to anticipate.</p>

Contract upon an agreement in writing and under seal, described in the opinion. Writ dated November 10, 1911. The defendants demurred to an amended declaration. The demurrer was heard by Pierce, J., who overruled it, and, the defendants having appealed, by agreement of the parties reported the case for determination by this court, judgment to be entered for the defendants if the demurrer was sustained, and. for the plaintiff in the sum of $300 with costs if it was overruled.

<p>Appeal from a decree of the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Pierce, J. The facts found by the Industrial Accident Board are stated in the opinion. The judge made a decree affirming the decision of the Industrial Accident Board and ordering that the insurer should pay to Emma G. Gaynor, as the dependent widow of Joseph C. Gaynor, the sum of $7.50 a week for a period of three hundred weeks from the date of his injury, October 9, 1912. The insurer appealed from the decree.</p>

<p>Automobile, License of operator. Negligence, In use of automobile, Violation of statute. Evidence, Presumptions and burden of proof.</p> <p>In an action by a passenger for hire in an automobile for injuries received in a collision of the automobile and a street railway car operated by the defendant, the fact that the plaintiff was violating St. 1909, c. 534, § 12, as amended by St. 1911, c. 37, in employing for hire to operate the automobile one who did not have the license required of one so doing by § 10 of that statute as amended by St. 1910, c. 605, § 4, is evidence tending to show that the plaintiff was not in the exercise of due care.</p> <p>Where, in an action for personal injuries received in a collision of an automobile in which the plaintiff was travelling and a street railway car operated by the defendant, the defendant relies in bar of the action upon the plaintiff’s alleged violation of the statutes respecting the registration and operation of motor vehicles, the burden of establishing such defense is upon him.</p>

<p>Trust. Contract, What constitutes, Consideration. Frauds, Statute of. Mortgage, Of real estate.</p> <p>A memorandum, signed by the holder of a mortgage on certain real estate and</p> <p>' reading as follows: “It is hereby agreed by us that I am to foreclose the mortgage now held by me on the Farm now owned by A. L. for the purpose of Clearing the Title on the property and it also agreed that I am to pay over to A. L. the amount over the mortgage held by me of $3,500 to the amount of $6,500 when the Title is clear,” is not a memorandum of a trust.</p> <p>Where the holder of a mortgage upon certain real estate agrees to pay to the owner of the equity of redemption the difference between $6,500 and the amount due upon the mortgage if the owner of the equity will permit him to foreclose the mortgage, and the owner of the equity permits the foreclosure, a binding contract is made which is not within the statute of frauds.</p>

<p>Bills and Notes, Indorser, Notice of dishonor. Agency.</p> <p>At the trial of an action against an indorser of a negotiable promissory note, a material question was, whether the defendant had been given proper notice of dishonor. There was evidence that the maker of the note was a nephew of the defendant, that the defendant at his request had been accustomed to indorse his commercial paper payable to the plaintiff, that, while the note in suit was being prepared and signed, the plaintiff was present at the defendant’s house at the nephew’s request, and that, directly under the defendant’s indorsement .and in his presence, the nephew -had written his own name and, .under that, the address to which a notice of dishonor addressed to the defendant afterwards was sent. Under his name as maker the nephew had written a different address. There was no evidence that the defendant had received the notice, and he testified that he did not reside or have a place of business in the city where the notice was sent during the year when the note was given and the notice was sent. Held, that there was evidence warranting findings that the nephew was acting for the defendant in writing the address to which the notice to the defendant was sent, and that it was intended to designate a proper address for such notice; and that under R. L. c. 73 § 125, a verdict for the plaintiff was warranted.</p>

<p>Damages, In contract. Evidence, Materiality.</p> <p>In an action against a milliner for the breach of a contract to employ the plaintiff as trimmer during a certain season at $18 a week, it is no ground for reducing the plaintiff’s damages that she refused to accept an offer of the defendant to employ her in a different way, if the offer did not define the work or name the rate of wages or the period of employment.</p> <p>In an action against a milliner for the breach of a contract to employ the plaintiff as trimmer dining a certain season at $18 a week, where upon the issue of damages the jury are instructed that the plaintiff in order to recover for the loss of her wages as fixed by the contract must show that by the exercise of reasonable diligence she was unable to procure other employment of some kind reasonably adapted to her abilities, it is right for the presiding judge to modify this instruction by adding that "the plaintiff was not obliged to seek employment in another locality, or of a substantially lower grade and character than that from which she was discharged;” and in such a case it is for the jury to decide, upon evidence presenting these questions, whether the plaintiff was justified in declining offers from out of town by reason of her mother’s illness, and whether the plaintiff’s refusal of offers at $15 a week or of work in an inferior position was warranted by her expectation of early employment at her regular occupation and salary.</p> <p>In an action against a milliner for the breach of a contract to employ the plaintiff as trimmer during a certain season at $18 a week, where, upon the issue of damages and the question whether the plaintiff used due diligence in attempting to procure other employment, the plaintiff has testified that she was unable to accept offers of work out of town on account of the illness of her mother, evidence of the condition of the plaintiff’s mother is competent as bearing on the reasonableness of the plaintiff’s refusal to accept employment in another city.</p>

<p>Contract on a promissory note for $350 dated June 19, 1912, and payable to the plaintiff thirty days after date. Writ dated August 8, 1912.</p> <p>The answer, besides a general denial and an averment of payment, alleged that, at the time the note referred to in the plaintiff’s declaration was delivered to him, the plaintiff signed and delivered to the defendants an agreement, which is described in the opinion, whereby certain real estate was conveyed to the plaintiff and it was agreed by the plaintiff that on the non-payment of the note, the agreement should be null and void and the title to the real estate should vest in the plaintiff absolutely; that the note was not paid and the plaintiff did take possession of the real estate and now holds its title and possession in pursuance of the agreement, by which the plaintiff received full satisfaction of the note.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts, including those stated in the opinion, to Jenney, J., who found for the plaintiff in the sum of $375.44. In addition to the facts stated in the opinion, it appeared that, when the note was not paid, the plaintiff notified the tenant of the premises to pay the rent to him; but that, before the plaintiff received any rent or profits of any kind from the land and buildings conveyed, an underlying mortgage was foreclosed, and the property and its possession passed wholly out of the plaintiff’s control. Judgment was entered for the plaintiff in accordance with the finding; and the defendants appealed.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Street railway. Evidence, Matters of common knowledge. Practice, Civil, Rulings and instructions.</p> <p>It seems, that one of the matters of common knowledge of which judicial cogni- • zance will be taken is that, after a motorman operating a street railway car sees that an exigency requires him to stop the car, he cannot do this instantly.</p> <p>-In an action against a corporation operating a street railway for injuries sustained by the plaintiff from being run into by a car of the defendant when walking across a street on a cross walk, it is prejudicial error for the presiding judge to instruct the jury without qualification that a pedestrian under the circumstances disclosed by the evidence has the right to go in front of an electric street railway car which he has seen approaching one hundred and fifty or two hundred feet away, provided he goes upon the track “sufficiently in front of the car so that the motorman by the use of the devices for stopping the car can stop it, and avoid coming in contact with ” him; as this instruction omits the important requirement of due care on the part of the pedestrian, and would allow the jury to return a verdict for the plaintiff even if the car was so near that the plaintiff in the exercise of due care ought not to have attempted to cross in front of it.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Crocby, J., who made a decree that Caroline Herrick, a daughter of George Herrick, the deceased employee, was entitled to $4 a week for three hundred weeks from March 7, 1913, the date of the injury that caused his death. The insurer appealed.</p> <p>The findings and decisions of the Industrial Accident Board contained the following:</p> <p>Caroline Herrick, a daughter of the deceased, testified before the Industrial Accident Board that she had lived at home with her father, as his housekeeper, since the death of her mother some years before, receiving from him her board and room and other necessaries. There was no agreement between them as to remuneration. As he was her father and needed her, she voluntarily gave up her work in a factory, where she was earning $9 a week, and remained at home to take care of him. She testified that she thought at the time of the death of her father she was as of much if not more advantage to him than he was to her but that she never intended to make any charge for her services to her father. She stated, on cross-examination by counsel of the insurer, that the arrangement with her father was that she was his housekeeper and did the work of the house; and that the reason she kept house and did this work was because he was her father. If she had not kept house for her father she could have earned money enough to have had good board and lodging and have had some money besides. She further stated that in addition to his wages her father received $8 weekly from a married sister and daughter for board, and $15.a month as rent for the upper apartment of the house in which they lived. She considered herself wholly dependent upon him for support at the time of the injury and during the years she remained at home keeping house for him. To the question: “Every cent you got for support and every bit of support you got came from your father? ” she answered “Yes.”</p> <p>The insurer presented to the board seventeen requests for rulings to the effect that Caroline Herrick was not dependent upon the earnings of the deceased employee for support.</p> <p>The Industrial Accident Board found that Caroline Herrick was wholly dependent for her support on the payments and contributions to her from the deceased, and accordingly decided that there was due to her from the insurer a. weekly compensation of $4 for a period of three hundred weeks from the date of the injury.</p>

<p>Practice, Civil, Conduct of trial: requests and rulings; Exceptions. Assault and Battery.</p> <p>At the trial of an action against a street railway company for an assault and battery alleged to have been committed upon the plaintiff by the conductor in charge of a car upon which the plaintiff was a passenger, where the defendant admitted that, if the conductor assaulted the plaintiff, the defendant was liable, and the only question of fact for the jury was, whether the conductor struck the plaintiff, the plaintiff is not entitled to have instructions given to the jury relating to the responsibility of the defendant for acts or failures to act on the part of its employees.</p> <p>An exception to a refusal to give a correct ruling as to the assessment of damages, asked for by the plaintiff in an action for an alleged assault and battery, is made immaterial by a verdict for the defendant. In the present case the ruling was given in substance although not in the language requested.</p>

<p>Tort for personal injuries alleged to have been caused by the negligent operation of an open street railway car of the defendant. Writ dated August 17, 1912.</p> <p>In the Superior Court the case was tried before Pratt, J. At the close of the plaintiff’s evidence, which is described in the opinion, the judge ordered a verdict for the defendant, and, by agreement of the parties, reported the case for determination by this court, judgment to be entered for the plaintiff in the sum of $2,000 if the ruling was wrong, and, if the ruling was correct, judgment to be entered upon the verdict.</p>

<p>Contract for money paid to the defendant by accident and mistake in 1899, 1900, 1902, and 1903. Writ dated December 18, 1912.</p> <p>The answer, besides containing a general denial, alleged that the action was barred by the statute of limitations.</p> <p>In the Superior Court the case was tried before Morton, J.</p> <p>The assignment referred to in the last paragraph of the opinion, which was under seal and was dated March 14, 1906, recited that the plaintiff, as guardian of Cornelia Phelps, had made an agreement with the defendant, a niece of the ward, to board and care for the ward for a stipulated amount per week, that in the adjustment and settlement of accounts for such board and care the plaintiff inadvertently had overpaid to the defendant the sum of $1,000 more or less, that the defendant desired to secure the plaintiff and the estate of Cornelia Phelps for such overpayment from her share as niece in that estate and that therefore the defendant assigned to the plaintiff “so much of all moneys, securities, or other property which I may be entitled to receive from the estate of the said Cornelia Phelps as niece and as one of her heirs at law or next of kin, as may be required to fully repay to said Harding, or to the estate of said Cornelia Phelps, whatever moneys I may have received from said Harding as guardian in excess of the amount to which I was legally entitled, together with interest . . . from the time of such overpayment, and I appoint said Harding my attorney for the purpose of collecting such amount from my share of said estate, and authorize him to sue if necessary, using my name for the purpose, but this assignment is intended to cover and embrace only so much of my interest in said estate as may be necessary to repay said overpayments with interest, and all amounts, if any, received by said Harding under this assignment in excess of the amount necessary to make such repayment are to be repaid to me.”</p> <p>The instrument also contained the following statement: “In connection with this assignment of my interest .in the estate of Cornelia Phelps, I intend to give to said Harding a policy of insurance on my life as security for said overpayments in the event of my death prior to the death of said Cornelia Phelps, and it is understood and agreed between said Harding and myself that as soon as full repayment has been made to him, or to said estate, by means of this assignment or from said policy of insurance, or from any other sources, then all remaining security held by said Harding is to be at once surrendered and transferred either to me or to my estate.”</p> <p>Other material facts are stated in the opinion. The judge instructed the jury that the statute of limitations did not apply. The jury found for the plaintiff in the sum of $1,786.08; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort for the conscious suffering and death of William B. Kempton, late of Arlington, alleged to have been caused, while he-was in the employ of the defendant, by his being crushed between a “semi-convertible” street railway car and a post in the Arlington Heights car barn of the defendant. Writ dated February 19, 1909.</p> <p>In the Superior Court the case was tried before Stevens, J. It appeared that the plaintiff’s intestate before the accident had worked for the defendant eleven years, that he was employed by it at the time when the Arlington Heights car barn was built and that he had worked there off and on from that time up to the time of the accident, having been so employed continuously for about a year before it.</p> <p>The bam had been built for use in connection with cars which passed the post where the plaintiff was crushed about nine inches from it. The semi-convertible cars were larger, and, in passing the post, were four inches from it.</p> <p>The plaintiff’s intestate had run across the barn and around the post, had taken hold of an upright support in the door of the car and was raising one foot to the step of the car, when the car started, and he was dragged between the post and the car and was crushed.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, In department store. Evidence, Matter of conjecture.</p> <p>At the trial of an action against the proprietor of a department store by a customer in the store who tripped at the top of carpeted stairs between two departments and fell, the plaintiff in substance testified merely that she had tripped. There was no other witness who saw the accident. The plaintiff’s husband testified that he examined the stairway a week after the accident and saw a seam running across a breadth of the carpet but that he made no measurements, that ten months after the accident he made another examination and found that about twelve inches from and parallel to the edge of the top step there was a ridge “ about a quarter of an inch above the level of the other part of the carpet, —not abrupt, not cut right up direct,” but coming up "gradually, the same as a mat would come,” that there was some looseness about the carpet, and that conditions were the same on the occasions of both his examinations. The jury found that the carpet was not in a defective condition by reason of looseness. Held, that the evidence as to the ridge alone did not show negligence on the part of the defendant, and that the evidence as to there being any combination of ridge and looseness which would have constituted a defect was too conjectural to warrant its being submitted to the jury.</p>

Tort at common law, by the administratrix of the estate of James O’Brien, to recover for the conscious suffering of the plaintiff’s intestate from personal injuries sustained by him on May 18, 1909, from being struck by a street railway car alleged to have been operated at an excessive rate of speed by the servants of the defendant, resulting in the death of the intestate on June 27,1909. Writ dated December 28, 1911.

<p>Practice, Civil, Rulings. License. Plumbing.</p> <p>In an action in a municipal court for the price of plumbing materials and work connected therewith, where it appeared that the work was done in Boston by a person employed by the plaintiff who was not a licensed plumber under the provisions of R. L. c. 103, the trial judge refused to rule that under the provisions of R. L. c. 103 as to the licensing of plumbers “and all existing statutes upon the subject” the plaintiff could not recover, and based this refusal on a mistaken opinion that R. L. c. 103 was not operative in the city of Boston. It did not appear by the record before this court that the work done by the plaintiff was subject to inspection as required by c. 103. It did not appear that the plaintiff was not registered under St. 1907, c. 550, § 113, and it also did not appear that the plaintiff did not hold a certificate issued by the State examiners under St. 1909, c. 536, §§ 2, 4, so that no license was required. Held, that, as it did not appear that the work was done illegally, the refusal of the judge to rule that the plaintiff could not recover was not shown to be erroneous, and that it was immaterial that the judge gave a wrong reason for his refusal of the ruling.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>If a man between sixty and seventy years of age, who is under no physical disability and is in possession of all his faculties, attempts to cross an unobstructed street containing parallel street railway tracks, on one of which a street car is approaching at the rate of twenty-five miles an hour, and steps in front of the car when it is only ten or fifteen feet away, and apparently does not see or hear the car until the instant before he is struck by it, when he tries in vain to withdraw and suffers injuries that result in his death, the administrator of his estate cannot recover from the corporation operating the railway for his death or conscious suffering, as there is no evidence that he was in the exercise of any care for his safety.</p>

<p>Salem Turnpike. Lynn and Boston Railroad Company. Boston and Northern Street Railway Company. Negligence, Street railway.</p> <p>The turnpike established under the charter of the Salem Turnpike and Chelsea Bridge Corporation, St. 1801, c. 63, (2 Mass. Special Laws, 506,) was a public highway for all persons paying the prescribed toll, and by St. 1868, c. 309, was made a free public highway. St. 1859, c. 202, incorporating the Lynn and Boston Railroad Company, gave that company a right to construct a street railway on “said Salem and Boston Turnpike, so far as may be practicable without detriment to other public travel,” and, when the county commissioners by an order made in 1898 gave that company a new location for its tracks within but at the side of the highway, that company obtained no right of private property in the soil of the highway but only a license to lay tracks for the purpose of street railway travel in a street already appropriated for public travel.</p> <p>The Boston and Northern Street Railway Company, as the successor of the Lynn and Boston Railroad Company, has in its location upon the Salem Turnpike, which is separated from the part of the street devoted to general travel by a curbstone eight or ten inches high and a line of trolley poles, a mere easement to use that part of the highway subject to the rights of general travellers on the highway; and a motorman operating one of the cars of that company is bound to exercise reasonable care to avoid injury to a wagon that has been left standing partly upon the street railway track owing to no fault of the driver in charge of it.</p> <p>If a motorman is operating a car of a street railway corporation, upon a location granted to the corporation, by a decree of county commissioners, within but at the side of a highway with provision for suitable passage for abutters across the location at certain places, at a time when, on account of a fog, he can see only one hundred feet ahead, and, running the car at a speed of almost twenty-five miles an hour and failing to notice the warnings of a driver whose wagon has been left by a runaway horse partly upon the track, the motorman does not reverse the power until he is within twenty feet of the wagon and does not stop the car until it has demolished the wagon and run about two car lengths beyond it, this, in an action against the railway corporation by the owner of the wagon, is evidence of negligence on the part of the motorman.</p>

Contract on a promissory note for $400 signed by the defendant Hartung as maker, made payable to himself, and signed by him and the defendant Naphen as indorsers. Writ in the Municipal Court of the City of Boston dated May 8, 1913. In the Municipal Court the case was submitted to Murray, J., upon an agreed statement of facts as follows: The note was delivered by the defendants to North and Wellman, note brokers, as agents for the defendants, to negotiate a loan of money.

<p> Animal. Horse. </p> <p>In an action for injuries sustained from being bitten by a horse of the defendant, the plaintiff is not entitled to go to the jury upon showing that, when he was travelling lawfully upon a public sidewalk, the defendant’s horse jumped upon the sidewalk and bit him in the arm and almost immediately afterwards tried to bite a child, if there is nothing to show that before the attack upon the plaintiff the horse ever had exhibited any ugly or mischievous propensities or habits.</p> <p>In an action for injuries sustained from being bitten by a horse of the defendant, where there is no evidence of misconduct of the horse before his attack on the plaintiff, evidence that, when the plaintiff’s attorney, after the plaintiff’s injury, called at the defendant’s place of business and was directed to a place where the horse could be seen, the horse “leered back his ears, showed his teeth and nabbed at him” and that, when the defendant’s driver patted the horse on the side, “the horse again leered his ears, showed his teeth, nabbed and kicked,” does not entitle the plaintiff to go to the jury on the question, whether the defendant before the plaintiff’s injury had or ought to have had knowledge that the horse was vicious.</p>

<p>Contract, with a declaration in three counts, the first count being upon an account annexed containing thirty-four items setting forth medical services and hospital expense incurred in the treatment of one Robert Litchfield at the plaintiff’s private hospital at Allerton, a part of Hull, on various dates beginning on August 29 and ending on September 30, 1909, one item of September 30 for "removal to home,” and two items on October 3 and 7 of visits to Hingham, the items amounting in all to $392 and interest from November 1, 1909. The second count alleged in substance that Robert Litchfield was injured by the defendant “so severely that he could not take care of himself,” that he was brought by the defendant’s employees to a hospital conducted by the plaintiff, that the defendant agreed to pay the plaintiff for the care and treatment of Litchfield, and that, after the plaintiff had furnished such care and treatment, the defendant refused, to pay therefor. The third count, besides the allegations in the second count, alleged that, upon the plaintiff making demand upon the defendant for the value of the services rendered as set out in the previous counts, “the defendant said to the plaintiff that it did not wish to pay said bill while an action'which had been brought against the defendant by said Litchfield for personal injuries was pending and unsettled, but if the plaintiff would let the bill stand until some agreement of settlement or other disposition was made of said action, the defendant would then pay said bill; that the plaintiff thereupon did let said bill stand until just prior to the bringing of this action, when the plaintiff was informed by the defendant that an agreement for the settlement of said action had been made, whereupon the plaintiff again requested payment of said bill; that the defendant then refused and has ever since refused to pay said bill or to pay for the said services rendered at its request.” Writ dated October 21, 1912.</p> <p>In the Superior Court the case was tried before Hitchcock, J. The plaintiff testified that Litchfield was sent to his hospital when injured, and that two days thereafter he, the plaintiff, was called upon by one Jeffrey, an employee of the defendant, atwhose request on a previous occasion he had rendered first aid to some persons injured by the defendant and had rendered a bill therefor to the defendant, which it had paid. Jeffrey had died before the trial, and the plaintiff was allowed to testify that he had told Jeffrey of the serious injury received by Litchfield, and had “stated to him that of course this was an absolutely different case than ordinary first aid where I was called to a case and had a privilege of leaving it as soon as another physician could be gotten, or as soon as he was so that he could be left; but in this case he was in the hospital and he couldn’t be gotten out; ” that Jeffrey stated that it did seem an unusual case to him, and “that I had better write to Mr. G. F. Hamlin, claim agent for the railroad.”</p> <p>The plaintiff further testified that, about a week later, Jeffrey called again and, in the course of the conversation, stated that he had with him the letter that the plaintiff had written to the defendant’s claim agent; that he told Jeffrey “that it would be at least two or three weeks before the patient could be removed without endangering his life. I said he probably could be moved then without endangering his life but it would prolong his convalescence, perhaps, start the hemorrhage or break up the fracture, but that if they insisted he could be moved.” Subject to an exception by the defendant the plaintiff was allowed to testify that Jeffrey then said, “Don’t think of it. The railroad will fix you up all right,” and that he stated that he had called in response to a request from the railroad.</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the defendant asked the judge for rulings that the plaintiff was not entitled to recover either on the first, the second or the third count, and for the following rulings, all of which were refused:</p> <p>“4. If the jury find that the plaintiff is entitled to recover, they can only assess damages against this defendant for fair and reasonable compensation for first attendance.</p> <p>“5. ‘First attendance’ means the initial treatment given the patient by the physicians and when the physician has done what he considers proper and necessary for the plaintiff’s welfare and comfort and the initial treatment has, in fact, ceased, the ‘first attendance’ is at an end.”</p> <p>“8. There is no evidence of any contract made by the defendant to pay the plaintiff’s bill, excepting that part which amounts to a fair and reasonable charge for first attendance.”</p> <p>“10. The plaintiff has failed to prove that Mr. Jeffrey had authority to bind the defendant for the plaintiff’s bill.”</p> <p>The instructions given to the jury on the subject of “first aid,” referred to in the opinion, were as follows: “Now, first aid to the injured is in a sense a comparatively modem term. First aid to the injured, or first assistance to the injured, is a term that has come into prominence somewhat recently, and I do not know that it has been judicially defined. I have not been able thus far to find any judicial definition of it. I can hardly hope to give you a judicial definition that may perhaps be accepted as true, but my understanding of first aid to the injured, or first assistance to the injured, means such care and treatment as is reasonably necessary to be rendered for the life and physical welfare of an injured person until such time as the injured person can either arrange to care for himself or to be cared for by his friends. I give you that definition as an instruction to be borne in mind in considering this case. If the plaintiff was employed by the defendant to render first aid to the injured or first assistance to the injured, then the extent of his employment would be limited by the definition which I have given you.”</p> <p>The jury found for the plaintiff in the sum of $476.67; and the defendant alleged exceptions.</p>

<p>Contract on an account annexed for a balance alleged to be due on the price of three safes sold to the defendant on March 31, 1913, and delivered to the town of North Andover at the defendant’s request, with a first item of $195, the price of the safes, an item of $4.74 for interest, and a credit item of $60 for cash paid by the defendant on July 23, 1913, leaving a balance alleged to be due of $139.74. Writ in the Municipal Court of the City of Boston dated August 26, 1913.</p> <p>In the Municipal Court the case was tried before Wentworth, J. The facts found and reported by him are stated in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>" 1. That the plaintiff before it can recover is required to have Henry E. Wood, [the Mr. Wood mentioned in the opinion] make a proper and legal inspection of the safes.</p> <p>“2. That a legal inspection as called for in the contract between the parties could only be made by an examination of the property by Henry E. Wood, and as no examination was made by him the plaintiff cannot recover.</p> <p>“3. That the right of action in this case was not complete until after there had been a proper inspection of the safes by the said Wood, and that an inspection after suit brought cannot aid the plaintiff’s case.”</p> <p>In regard to the first and third rulings, the judge found that Mr. Wood had made a proper and legal inspection of the safes, and therefore ruled that those rulings were not applicable, and refused to give the second ruling.</p> <p>The judge found for the plaintiff in the sum claimed in the declaration and at the request of the defendant reported the case to the Appellate Division. The Appellate Division ordered that the report be dismissed; and the defendant appealed.</p>

<p>Negligence, In use of highway.</p> <p>If a traveller on foot, starting to cross a street at a cross walk, first looked to his left, where teams travelling on the right hand side of the street were to be expected, and then immediately looked to his right, and for the first time saw a two horse team coming at an excessive rate of speed only ten feet distant, and if, before he could get out of the way, he was struck by the horses, who had been turned to the left hand side of the street, when he still was within three or four feet of the curbstone from which he had started, he can be found to have been in the exercise of due care.</p> <p>If the driver of a two horse team is driving at the rate of from twelve to fourteen miles an hour and is talking to a companion by his side, unmindful of the presence on the highway of a traveller on foot who is starting to cross the street at a cross walk ahead, and, instead of continuing in a straight course, by which he would avoid a collision with the traveller, allows the horses to swerve to the left and knocks down the traveller, these facts are evidence of the driver’s negligence in an action against his employer for the injuries thus caused.</p>

<p>Negligence, In use of highway. Evidence, Competency. Practice, Civil, Exceptions.</p> <p>If one on a dark and rainy night drives his automobile at high speed over a country road with the windshield up and the side curtains down, so that for safety he must rely largely if not wholly on his sense of sight, and, knowing that he is in the vicinity of a railroad grade crossing, where automobiles may be intercepted at any time by passing trains having the right of way, keeps on at full speed until his automobile, which could have been stopped within thirty feet, runs into the rear end of a freight train standing partly within the roadway at the crossing, he is not in the exercise of reasonable care and cannot recover from the railroad corporation for the damage to his automobile caused by the collision, even if the railroad corporation was negligent.</p> <p>In an action against a railroad corporation for damage to the plaintiff’s automobile from running into a freight car standing on a grade crossing of the defendant’s railroad with the highway on which the plaintiff was driving, upon the issue whether the plaintiff was in the exercise of due care, it is proper to exclude evidence offered by the plaintiff to show that on a previous occasion another traveller driving an automobile over the road did not see a stationary freight car at the crossing.</p> <p>In an action of tort for negligence, where it appears that the damage for which the plaintiff seeks recovery was due to his own negligence, it is not necessary to consider exceptions to the exclusion of evidence bearing only on the question of the defendant’s negligence.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action against a building contractor under the employers’ liability act for injuries sustained by the plaintiff from the block of a set of falls falling on him after it had been tied to the falls negligently by the defendant’s superintendent, where the plaintiff, whose knowledge of the English language is limited, has testified that he did not hear a warning from a fellow workman and further has testified that the superintendent said “He go to the office that way — he go when he get. the rope ready. . . . He said go away,” it is for the jury to say whether the plaintiff understood the superintendent to tell him to “go away" from beneath the block or whether he understood him merely to say that he himself was going away, and, on this and other evidence showing the plaintiff to have been at work in the ordinary way under the direction of the defendant’s superintendent, the question whether he was in the exercise of due care at the time of his injury properly may be submitted to the jury.</p> <p>If a superintendent, in charge of workmen engaged in the construction of a building, says to one of the workmen who is having some difficulty in fastening a block by a rope to a set of falls, “ Why don’t you tie it this way? ” and proceeds to tie it himself, and then gives an order to a workman above to hoist, whereupon the knot parts or unties, although subjected to no undue strain, and the block falls on the first named workman and injures him, these facts are evidence that the injury was caused by. the negligence of a person entrusted with and exercising superintendence.</p>

<p>Tort for personal injuries sustained by the plaintiff at half past six o’clock on the evening of March 9, 1911, when travelling on the cross walk that crosses Cambridge Street in Boston at its intersection with Bowdoin Street, from being knocked down by a street railway car alleged to have been operated negligently by the defendant’s servants. Writ dated March 20, 1911.</p> <p>In the Superior Court the case was tried before Sherman, J., (retired,) who at the request of the Chief Justice of that court under St. 1911, c. 527, held one of the civil sessions of the court during the month of April, 1913. At the close of the evidence, which is described in the opinion, and again at the close of the charge, the judge refused to rule that on all the evidence the plaintiff was not entitled to recover, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,500. The defendant alleged exceptions, including an exception to the admission of certain evidence which is described sufficiently in the opinion.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 25 and amended on February 28, 1913, by certain officers of Noddle Island Asembly No. 5789 of the ICnights of Labor, an unincorporated association, for themselves and all other members who wish to join as parties, against the officers and members of certain unincorporated associations of longshoremen- and certain persons individually and as members of the executive committee of the Transatlantic Steamship Conference, a voluntary organization, to enjoin the defendants from carrying out a certain agreement in writing dated February 20, 1913, between persons representing the Boston Transatlantic Steamship Lines and contracting sievedores and persons representing the International Longshoremen’s Association, and from refusing to employ the plaintiffs and the members of their union for the reason that they are not members of the unions organized by the defendants; praying also for an injunction to restrain the defendants from conspiring to injure the plaintiffs by preventing them from obtaining employment, and to restrain the defendant members of unions from conspiring to prevent by threats and intimidation the defendant representatives of steamship companies from employing the plaintiffs unless they become members of the unions formed and controlled by the defendants; and for further relief.</p> <p>The portion of the contract of February 20, 1913, alleged to be illegal was as follows: “Article I. It is distinctly understood and agreed that all Longshoremen employed by the party of the first part in connection with loading and unloading of ships shall be members of the International Longshoremen’s Association whenever such men are available and whenever such men are not available then the party of the first part has the right to employ such other men who can perform the work until such time as the party of the second part can furnish the men, but the party of the first part has the right to employ such non-union men until the completion of the day on which they are employed.”</p> <p>The case was heard by Braley, J., who made the findings which are quoted in the opinion. He ruled as matter of law that the bill could not be maintained, and ordered that a decree be entered dismissing it. A final decree was entered dismissing the bill; and the plaintiffs appealed.</p> <p>The case was argued at the bar in December, 1913, before Rugg, C. J., Morton, Hammond, Braley, & Be Courcy, JJ., and afterwards was submitted on briefs to all the justices then constituting the court.</p>

<p>Equity Jurisdiction, To enjoin continuing trespass. Equity Pleading and Practice, Decree.</p> <p>In a suit in equity by a landowner against the owner of the adjoining land and the lessee of such owner, to enjoin the defendants from committing continuing trespasses on the plaintiff’s land by maintaining foundation stones projecting therein placed there by the defendant lessee in constructing a basement, where the bill contains prayers for damages and for further relief, and where by an alternative order the defendant lessee is directed either to restore the plaintiff’s land to its original condition or to pay to the plaintiff a certain sum of money assessed as damages, and does neither, the plaintiff, upon the framing of a final decree ordering the lessee to pay the damages, is not entitled to a further order against the defendant landowner directing him to execute an instrument releasing to the plaintiff any interest in the plaintiff’s land and disclaiming any right to an easement therein; because the defendant landowner by the wrongful acts of his lessee, which were beyond his control, could acquire no interest in the plaintiff’s land that could ripen into an easement.</p>

<p>Practice, Civil, Agreed statement of facts. Evidence, Presumptions and burden of proof. Tax, Exemption. Charity.</p> <p>Under St. 1913; c. 716, § 5, permitting inferences of fact to be drawn from the facts and documents stated in an agreed statement of facts unless the parties stipulate to the contrary, a general finding made by a trial judge upon an agreed statement of facts will not be disturbed unless it is unwarranted by all the evidence, including both the facts stated and the reasonable inferences that may be drawn from them.</p> <p>The burden of proof is upon one seeking to establish an exemption from taxation. If a lodge incorporated as a charitable and benevolent institution owns a building in which it maintains a club for the social enjoyment of its members, and if the dominant use of the real estate is that of a private clubhouse rather than that of a headquarters for the dispensation of charitable relief, such real estate is not exempt from taxation under St. 1909. c. 490, Part I, § 5, cl. 3, as owned and occupied by a charitable institution for the purpose for which it was incorporated, although the purposes stated in the charter and constitution of the lodge are charitable, it performs many charitable functions, and the secretary’s office and the lodge room are in the building.</p>

<p>Negligence, In use of parkway, Automobile. Automobile. Revere Beach. Evidence, Matters of common knowledge.</p> <p>A boy eleven years of age, who with twenty-five or thirty other children is skipping and running across a parkway adjoining a public beach, and who, when a man runs out to the centre of the parkway and tries to stop the boys, warning them of the approach of an automobile at high speed, having run to the end of the line of his companions, stops a foot in advance of them, and is struck and killed by the automobile, is not necessarily negligent, and in an action to recover damages for his death the question of his due care is for .the jury.</p> <p>A person operating an automobile, who drives it along a parkway adjoining a public beach, where ahead of him twenty-five or thirty children are skipping and running across the parkway, and continues to go at a rate of speed exceeding fifteen miles an hour, or perhaps as high as twenty-five, passing within a foot or two of a group of boys who are being held back by a man to protect them and within about the same distance of others, until he runs down and kills a boy eleven years of age, who has run to the end of the line of his companions and has stopped a foot in advance of them, in an action brought against him for causing the death of the boy can be found to have been negligent and to have been violating St. 1909, c. 534, § 16, as amended by St. 1910, c. 605, § 6, by operating his automobile at a rate of speed "greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public.”</p> <p>It here was said to be a matter of common knowledge that Revere Beach is a public reservation under the control of the metropolitan park commission, which in the summer season frequently is visited on a single day by thousands of persons.</p>

<p>Negligence, Proximate cause. Joint Tortfeasors. Practice, Civil, Conduct of trial: argument to jury.</p> <p>In an action by a workman against the members of a firm of contractors for injuries sustained from the falling on the plaintiff of a cellar wall in process of construction, upon the trial of the issue, whether the negligence of the defendants in making concrete for the part of the wall which fell was a contributing proximate cause to the accident, it was said, that on the evidence presented the plaintiff’s counsel had a right to argue to the jury that the concrete was mixed in a negligent manner by the defendants and as to “the results which might be expected to follow from such mixing,” in order to show that the falling of the wall was a result which naturally would follow and reasonably should have been expected to follow from such mixing; although the statement in the bill of exceptions of the exception to the exclusion of this argument by the presiding judge was so meagre that the court might have hesitated to order a new trial for this reason, had not material and serious error been shown in the judge’s instructions to the jury.</p> <p>In an action against the members of a firm of contractors for injuries sustained from the falling on the plaintiff of a cellar wall in process of construction, upon the trial of the issue, whether the negligence of the defendants in making concrete for the part of the wall that fell was “ a contributing proximate cause to the accident,” where, besides evidence in regard to negligent mixing of the concrete, there is evidence that another firm of contractors had been negligent in removing too soon the forms that held the concrete in place, the plaintiff is entitled to have the issue found in his favor and to hold the defendants, although the ■accident would not have happened without the negligence of the other firm in removing the forms, if he shows that the accident would not have happened without the negligence of the defendants in mixing the concrete, and that each of these different negligences was a proximate cause of the accident, which was due directly to their combined effect.</p>

<p>Negligence, In keeping explosives, Proximate cause. Municipal Corporations.</p> <p>A town is not liable for personal injuries caused by'the explosion of dynamite, thrown in play upon a bonfire built in a field adjacent to a highway by boys who had procured the dynamite from a tool chest which employees in the town’s sewer department had left unwatched and unguarded on the highway and in which they negligently had left the dynamite.</p>

<p>Tort by the administrator of the estate of Joseph P. Travers, to recover for his death and conscious suffering caused by his being run over on September 22, 1910, by a street railway car of the defendant near the corner of Quincy Street and Bowdoin Street in that part of Boston called Dorchester. Writ dated August 18, 1911. .</p> <p>In the Superior Court the case was tried before Aiken, C. J. There was evidence tending to show the following facts: At the time of the accident, the plaintiff’s intestate was five years and one month of age, and both of his parents were living. He had been attending a parochial school near the place of the accident for about a week. He had three sisters, Catherine, Helen and Mary, thirteen, eleven and nine years of age respectively, and a brother James, seven years of age. His mother was" confined to her bed by sickness and had put him in charge of his two older sisters to go to and from school. Both could accompany him to the school, but only Helen could return with him because at the time of his return Catherine was attending to other duties in a church near by.</p> <p>Bowdoin Street runs about north and south. Quincy Street runs about east and west and enters, but does not cross, Bowdoin Street from the west. At the southwesterly corner of the streets was a drug store. About one hundred feet south of the drug store was the parochial school which the children attended, Joseph being in the first grade and Helen in the fifth. Opposite the school was a convent. It was customary, in leaving the school, for the third, second, first and fifth grades to march out in that order, to cross the street directly in front of the school in charge of the teachers, and then for the children, upon the teachers leaving them to enter the convent, to turn to their left and march northerly on Bowdoin Street to a tree which was directly opposite the drug store previously described, and there to break ranks. It had been arranged and was customary for Joseph to wait at this tree for his sister Helen.</p> <p>On the day of the accident, the first, Joseph’s, grade marched out first, and, while waiting for his sister Helen, he crossed and recrossed the street and was run into by a north bound car.</p> <p>At the close of the evidence the defendant asked for general rulings that on all the evidence the plaintiff could not recover, and for the following specific rulings:</p> <p>"3. That under . . . the counts for death, the plaintiff must show that the plaintiff’s intestate was himself actively and actually in the exercise of due care or diligence.</p> <p>“4. That there is no sufficient affirmative evidence of due care or diligence on the part of the plaintiff’s intestate.</p> <p>“5. That under all the evidence the plaintiff’s intestate was capable of exercising some care for his own safety.</p> <p>“6. That, on the other hand, if the plaintiff’s intestate was incapable of exercising care for his own safety, then it must be shown that the person in whose charge he was placed by his parents, namely, his sister Helen, was in the exercise of due care in taking care of him.</p> <p>“7. And if Helen was not present at the time when the boy was alone, crossing and recrossing the street, then, there is no evidence of her due care.</p> <p>"8. If the plaintiff’s intestate was incapable of exercising any care, then the fact that he was alone, crossing and recrossing the street, is prima facie evidence of negligence on the part of those in charge of him.”</p> <p>The rulings were refused, subject to exceptions by the defendant.</p> <p>The defendant also excepted to the following portions of the charge to the jury:</p> <p>“If Joseph was of sufficient intelligence to properly be allowed to be on the street at the time this accident occurred, then he is responsible in the matter of conduct or in the matter or due care for such behavior as would reasonably be expected of a child of his age. If he behaved with the care that you would reasonably expect of a child of his years, although it was not care that you would expect of an adult, he was acting with due care. If he failed to exercise the prudence or the caution that you would reasonably expect of.a child of his age then he was not acting with due care. . . .</p> <p>“If Joseph was not of sufficient intelligence to be safely permitted upon the street at this time, then ... his parents are responsible for him, and that duty on the part of a parent may be discharged by putting the younger child in the care of older children, or an older child or children. ... If Helen and Catherine, one or both of them, were proper custodians for the child, and the child ought to have had some one to take care of him, then, . . . the parents have done their duty, and if Helen or Catherine conducted themselves as children of their age should reasonably do there is due care. If there was a failure on the part of one or both of them that caused the injury then there is a lack of due care. . . .</p> <p>“If Joseph was not able to take care of himself then it was the duty of the parents to see that he had suitable oversight in going to school, and if Helen or Catherine, singly or in conjunction, were insufficient, were not suitable persons to care for their younger brother, and through their failure to do so he was hurt, there is not due care. If they were suitable persons and they failed to exercise that oversight that they should of Joseph, and that is the reason in part why Joseph was hurt, there is not due care. If the children were suitable in years and in intelligence to care for their brother and they behaved reasonably in that respect, . . . the obligation of exercising due care is sustained. . . .</p> <p>“All of the considerations that are presented by the evidence in this case you will have in mind — that the children came out at different intervals, that the mother had or ought to have had some knowledge of the way the classes departed from the school, and your inquiry will be whether the parents discharged the duty that was upon them to look after a child that was of insufficient intelligence to look after himself. That duty would be discharged by putting the child in the care of an older child who had intelligence enough to do it. If that child performed the duty due care would be sustained — due care would be exercised. If there was a failure on the part of the parents by reason of the selection of an improper person, or a failure by reason of the child to act as a child reasonably should — and I am now speaking of Helen — then there is a lack of due care.”</p> <p>The jury found for the plaintiff in the sum of $2,000 for the death and in the sum of $200 for the conscious suffering; and the defendant alleged exceptions.</p>

<p>Workmen’s Compensation Act. Practice, Civil, Appeal.</p> <p>Where, by a decree made under the workmen’s compensation act, it is directed. that a certain sum be paid to the administrator of the estate of a deceased employee, to be by him divided between the administrator of the estate of a child of the employee of tender years, who died one week after the employee and had been living with him at the time of his injury, and the guardian of another child of tender years, the insurer is not entitled to be heard, upon an appeal by it alone from the decree, upon the question whether such a division is proper.</p> <p>Whether, where one of two dependent children of tender years of an employee whose death resulted from injuries which called for payments to be made to his dependents under the provisions of the workmen’s compensation act died about a week after his father, it is proper to direct that an allowance made under St. 1911, c. 751, Part II, § 6, of the act shall be divided equally and that one half of it shall be paid to the administrator of the estate of the deceased child and the other half to the guardian of the surviving child, here was not decided, the insurer alone appealing from a decree making such a division and having no right to be heard on that question.</p>

<p>Negligence, In maintenance of restaurant, Invited person.</p> <p>At the trial of an action by a woman against a restaurant keeper for personal injuries caused by the plaintiff falling down a flight of stairs leading to a basement when she supposed she was entering a toilet room, there was evidence tending to show that, while in the restaurant as a customer, she inquired for the toilet and the defendant pointed out the toilet room to her and said “You go inside;” that the toilet room was dark, and its outer door was open; that immediately at the left of the outer door on a wall at right angles with it was the door leading to the stairway; that the plaintiff passed through the open door, opened the door leading to the stairway, stepped through it and fell down the stairway. Held, that the plaintiff was invited by the defendant to use the toilet room, and that there was evidence upon which the jury were warranted in finding that the plaintiff was in the exercise of due care and that the defendant had failed to exercise toward the plaintiff the duty of seeing that the approach to the toilet room was reasonably safe for her use.</p>

<p>Contract for a balance alleged to be due under an agreement in writing dated February 12, 1907, between the plaintiff and the defendants, doing business under the names and styles of W. Wolf and Sons and the New England Waste Company, for the purchase by the defendants at stated prices of the entire output of cotton waste from mills of the plaintiff for a year ending April 30, 1908. Writ dated May 6, 1911.</p> <p>The defendants filed a declaration in set-off, claiming a rebate of $3,269.67, hereinafter described.</p> <p>In the Superior Court the case was tried before Aiken, C. J. It appeared that the contract provided for payments by the defendants “on the tenth of each month for all waste shipped to us during the previous month.” On September 24, 1907, an agreement in writing was made between the parties, in substance as follows:</p> <p>"Referring to contract of February 12 for the waste output [of' certain mills, including the plaintiff] . . . regarding which a difference has arisen between these various mills and our company [the defendants], we desire to adjust same and wish to state that it will be agreeable with our company to have this difference adjusted in the following manner:</p> <p>“We agree to accept the entire output of the above mentioned mills in accordance with the contract as originally made, with the further understanding that all waste which has been billed to us by these mills is to be settled for in accordance with the invoices rendered. All waste which the mills now have on hand is to be billed and settled for in accordance with the original contract during this month. E. & C. E. All waste which the mills may accumulate from now until the expiration of this contract is to be billed and settled for in accordance with the original contract. . . .</p> <p>"It is a part of this modification to our original contract that the above mills will at the expiration of contract of February 12 give us a rebate and after settlement by us of the waste shipped or billed to us by them at the end of April 1908, make for us a memorandum of the total quantity of waste shipped during the 12 months, ending April 30th, 1908, and on of this total quantity of [or] two months’ output, make cash settlement or rebate [to] us so as to make the net costs to us F. O. B. the respective mills for these two months output on certain grades of waste” at certain specified rates.</p> <p>Thereafter further differences arose between the parties.</p> <p>On May 25, 1908, the situation was that the plaintiff had shipped to the defendants all the waste covered by the contract except five hundred and eighty-seven bales of motes, the price of which according to the contract of February 12, 1907, was in all $3,255.49. These bales the plaintiff held on storage for the defendants at their request and because of their failure to give shipping instructions. Upon issues submitted to the jury respecting these bales it was determined that the defendants were indebted to the plaintiff therefor.</p> <p>On May 25, 1908, the plaintiff wrote to the defendants a letter, enclosing a statement and memoranda. The letter was as follows:</p> <p>‘We herewith enclose statement showing amount due $10,312.57. This is after crediting your account with $3,269.67, allowance due you in accordance with agreement of Sept. 24, 1907. Kindly check this account and let us have remittance covering this balance by return mail. You will note considerable of this account is nearly sixty days past due.”</p> <p>On June 15 the defendants paid the balance shown by the statement excepting the $3,255.49. The plaintiff wrote to the defendants, stating that it did not understand the reason for the deduction, and a conference followed.</p> <p>On July 6,1908, counsel for the plaintiff wrote to the defendants demanding payment of the sum of $3,255.49, above mentioned, and stating that by reason of the fact that the defendants had failed to pay, in accordance with the provisions of the contract of September 24,1907, they were not entitled to the rebate therein mentioned and therefore owed the plaintiff both for the goods sold and delivered against which the defendants were attempting to offset the rebate and for the motes in issue.</p> <p>The plaintiff sought to recover in this action (1) $3,269.67 for goods sold and delivered, about which there was no dispute but against which the defendants claimed the right to set off the rebate of $3,269.67, (2) the $3,255.49 above described and (3) interest.</p> <p>The issue as to the $3,255.49 having been determined by the jury in the plaintiff’s favor, the. Chief Justice ruled that the plaintiff was entitled to the further sum of $3,269.67 for goods sold and delivered with interest thereon at the rate of six per cent per annum from July 10, 1908, and that the defendants were not entitled to the rebate which they claimed of $3,269.67, and accordingly directed a verdict for the plaintiff in the sum of $8,320.85, of which $1,794.69 was interest, and directed a verdict for the plaintiff on the defendants’ declaration in set-off.</p> <p>Thereupon the defendants paid the plaintiff the amount of $3,255.49 with interest and costs to date without prejudice to the plaintiff’s rights as to the balance of the verdict, and the Chief Justice reported the case for determination by this court, judgment to be entered for the defendants if the defendants were entitled to the rebate or allowance of $3,269.67; otherwise, judgment to be entered for the plaintiff in the amount of $3,269.67 and interest and costs.</p>

<p>Contract by a real estate broker to recover $1,000 as a commission on a sale of certain real estate of the defendant at the corner of Broadway, Second and Cherry Streets in Chelsea Square in Chelsea, for which the plaintiff alleged that he procured a purchaser in June, 1902. Writ in the Municipal Court of the City of Boston dated February 21, 1905.</p> <p>On appeal to the Superior Court the case was tried before Hitchcock, J. The course of the trial and the facts which could have been found upon the evidence are described and stated in the opinion. The statement in the bill of exceptions in regard to the remark of the judge, which was held not to have cured his erroneous instruction to the jury, was as follows: The counsel for the defendant said, " And then exception is taken to the charge that there is no question that the agreement is binding within the meaning of the term, in that portion of the charge.” Whereupon the judge said, “I did not say [that] as a fact. Perhaps I said as a ruling of law that it was a contract within the meaning of the terms as used.” The bill of exceptions then states, “ The foregoing colloquy was had in the presence of the jury but it is not certain whether it was heard by them or not.” The defendant’s offer of evidence for the purpose of showing that Wheeler owned no property in South Boston, mentioned in the opinion, related to testimony of the defendant that the only property ever shown to him by Wheeler was certain real estate in South Boston.</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,488.83; and the defendant alleged exceptions.</p>

<p>Contract or tort, against the New York, New Haven, and Hartford Railroad Company and the Boston and Maine Railroad, for the loss of five cases of household goods shipped by the plaintiff from Mansfield to Newburyport. Writ in the Municipal Court of the City of Boston dated October 1, 1912.</p> <p>In the Municipal Court the case was tried before Murray, J. The facts as stated in his report were as follows:</p> <p>The plaintiff hired a teamster named Paledino, who was practically an illiterate person, although able to speak English sufficiently well to testify in English, to take the plaintiff’s household goods from his house in Mansfield to the defendant’s station in that town. The plaintiff, in addition to the goods, gave the teamster bills of lading, written and signed by the plaintiff as “shipper.” The teamster delivered the household goods and the bills of lading to the agent of the defendant New York, New Haven, and Hartford Railroad Company in charge of its station at Mansfield. This agent refused to transport the goods unless the freight thereon was prepaid and requested the teamster to bring a stated amount of money for that purpose. The goods and bills of lading were left with this agent of the said defendant while the teamster went to the plaintiff and obtained from him the amount of money demanded by the agent and paid it to him. The said defendant’s agent before finally returning the bills of lading to Paledino put thereon a stipulation printed in red ink by means of a rubber stamp, wherein the said defendant, in consideration of a lower rate of freight paid, limited its liability in case of loss of the goods to $10 per one hundred pounds. The said defendant’s agent did not, at the time of returning the bills of lading, explain to the teamster the contents or object of the stipulations printed by the rubber stamp, and nothing was said to the teamster about “limited liability,” nor was any greater sum requested by the agent of the said defendant for the prepayment of the freight charges, and it was admitted at the trial by the defendants that the words printed by the rubber stamp were inserted in the bills of lading above the signature of the plaintiff without his actual knowledge. The words added by the rubber stamp were inserted in the bills of lading after the delivery of the goods, and at the time of the prepayment of the freight to the said defendant. The teamster received the stamped bills of lading without reading them and without any offer from the defendant’s agent to read them to him and handed the bills of lading to the plaintiff, who did not know of the use of the rubber stamp until after the loss occurred. The plaintiff received the shipment at the station of the defendant Boston and Maine Railroad at Newburyport, short of five cases, the actual value of which was $350.</p> <p>The words printed in red ink, which were added to the bills of lading by the rubber stamp, were as follows:</p> <p>“Restricted valuation for household goods.</p> <p>"The rate of freight is based on the specified valuation of $10.00 per 100 lbs., and in consideration of this rate the consignor agrees that in the event of loss of, or damage to this property or any part thereof, from causes which make the carrier liable, such liability shall not in any case exceed in amount $10.00 per 100 lbs.</p> <p>“......................Consignor.”</p> <p>Upon the question whether the plaintiff had knowledge of the railroad charges for the carrying of freight, there was a conflict of testimony. The defendant New York, New Haven, and Hartford Railroad Company offered testimony of a conversation by telephone of its agent at Mansfield with the plaintiff who called up the agent before sending the goods for shipment and asked what “the cost would be” from Mansfield to Newburyport, and was told that the rate would be twenty-five cents per one hundred pounds, if released to a valuation of $10 per one hundred pounds, and that no reply was made thereto. It further appeared in evidence that the plaintiff frequently had had freight transported over the lines of the defendant New York, New Haven, and Hartford Railroad Company.</p> <p>The plaintiff testified that he did not recall that the agent quoted any rate to him; but shortly after the conversation the goods were received at the station at Mansfield for shipment. The judge found upon this evidence that the plaintiff was informed beforehand by said defendant’s agent of the limited liability rate.</p> <p>At the close of the evidence the plaintiff asked the judge to make the following rulings:</p> <p>“1. On the whole evidence the plaintiff is entitled to recover the full amount of his loss sustained as testified to by the plaintiff and Mrs. Johnson.</p> <p>“2. That the bill of lading is a contract between the plaintiff and the defendant without the limitation subsequently inserted by the defendant after the delivery of the goods to it and without his knowledge and consent.</p> <p>“3. That the teamster Paledino had no authority to bind the plaintiff by receiving the bill of lading from the defendant in the changed form, i. e. with a rubber stamp limiting the liability as expressed thereon.</p> <p>“4. That the limitation inserted in said bill of lading without the knowledge and consent of the plaintiff is null and void and is not binding upon him.</p> <p>“5. That from the facts in this case and circumstances, such a limitation as to liability is not fairly made and is evasive.</p> <p>“6. That the defendant Boston and Maine Railroad was negligent in handling freights shipped to its terminal at Newburyport, Mass., without supplying agents or servants in handling the goods and in allowing teamsters to take what they desired without comparing their takings with the bills of lading or freight bills.</p> <p>“7. That an agreement between a common carrier and a shipper limiting responsibility on behalf of the common carrier must be assented to clearly and unequivocally by the shipper and the terms under which the carrier proposes to carry the goods, must be adopted as a contract between the parties with full knowledge brought home to the shipper.”</p> <p>The judge refused to make these rulings, and made instead the following rulings, which were requested by the defendants:</p> <p>“3. The plaintiff is bound by the acts of his agent Paledino.</p> <p>“4. The plaintiff is bound by the acts of his agent Fellows.” [No such person is mentioned in the record.]</p> <p>“6. The goods in question were shipped under a contract proving that their value should be released to $10 per one hundred pounds.</p> <p>“7. The contract providing for a released shipment is a valid contract and is binding upon the plaintiff.</p> <p>“8. If the court finds that the plaintiff is entitled to recover for the failure of the defendant Boston and Maine Railroad to deliver the plaintiff’s goods to the plaintiff or his agent, in that event the plaintiff cannot recover as damages at a greater value than $10 per 100 pounds.</p> <p>"9. The plaintiff cannot assert the invalidity of the bills of lading offered in evidence.”</p> <p>The judge found for the plaintiff in the sum of $50 against the defendant Boston and Maine Railroad, and found for the defendant New York, New Haven, and Hartford Railroad Company. At the request of the plaintiff he reported the case to the Appellate Division under St. 1912, c. 649, § 8.</p> <p>The Appellate Division made an order that the report be dismissed; and the plaintiff appealed.</p>

<p>Agency, Duty of fidelity. Broker. Contract, Validity. Evidence, Admissions and confessions.</p> <p>A real estate broker employed to sell certain property bears k fiduciary relation to his principal that requires him, not only to exert his skill and best efforts, but also to disclose to his principal all facts material to the transaction that come to his knowledge.</p> <p>A broker, who was employed to procure a purchaser for certain real estate, cannot maintain an action against the purchaser so procured by him to recover a sum of money which was to be paid to him by the defendant for a violation of his duty to his principal in concealing the name of the defendant, who wished it concealed lest its disclosure should result in his being obliged to pay a larger price for the property.</p> <p>Where a party to an action testifying in his own behalf makes a statement, which taken by itself may tend to prove a fact in his favor, but which is so explained by the rest of his testimony as to leave no possible doubt that he concedes the opposite to have been the truth, the conceded fact is to be taken as shown by the party’s whole testimony, and it is not a case where the jury may determine which of two inconsistent statements is the true one.</p>

<p>Tort for an alleged libel published on July 24, 1912, in a newspaper issued by the defendant. Writ dated July 31, 1912.</p> <p>The alleged libel as set out in the declaration was as follows:</p> <p>“Sues for $20,000 for an Alleged Assault. Adolph S. Lundin of this city is the defendant in a suit for $20,000, filed in the office of the clerk of the Superior Court by Helen Lind, also of Boston. The plaintiff alleges that on May 8, Lundin committed an assault upon her which resulted in wrenching her side, straining her back and causing other injuries which prevented her for a long time from attending to her usual duties.”</p> <p>The first count of the declaration was for general damages. The second count, in addition to general damages, alleged special damage from loss of patrons and of credit in the plaintiff’s business.</p> <p>The defendant demurred to the declaration on the grounds that it did not set forth a cause of action and that the words were not libellous, and also on other grounds applying only to the second count and relating to the claims of special damage.</p> <p>The case was argued on the demurrer before Morton, J., who made a memorandum of decision, in which he made the following statement as to the general grounds of demurrer: “I cannot rule as a matter of law that the words are not libellous, but leave that question to the jury.” As to the other grounds relating to special damage the judge sustained the demurrer but gave the plaintiff leave to amend. The declaration was amended accordingly, and a demurrer to the amended declaration was overruled. The defendant then answered, setting up the matters of defense mentioned in the opinion.</p> <p>The case was tried before Lawton, J. The material evidence is stated in the opinion. The jury returned a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions to'the rulings of the judge and his refusal of rulings requested, raising the questions that are disposed of in the opinion. The portion of the judge’s charge in regard to the testimony of Dr. Trays, which is mentioned in the opinion, was as follows: “In the first place, I will consider the question of injury to his [the plaintiff’s] health, and I have to say to you that he is not entitled to recover anything for any injury to his health which you may think, in view of the evidence here, he has suffered. Certain evidence was introduced from the doctor about that, as to his condition of health, and evidence was introduced as to the doctor’s bill. I instruct you that all that evidence should be stricken from the record, is to be stricken from the record and should be excluded entirely from your consideration, has no bearing in the case whatsoever.”</p>

Contract on a promissory note dated June 20, 1912, for $350 payable three months after date to the order of the maker, signed by Allen H. Bearse as maker and indorser and by Samuel A. Fuller, the defendant, as indorser. Writ in the Municipal Court of the City of Boston dated September 28, 1912.

<p>Workmen’s Compensation Act. Words, “Personal Injury,” "Injury.”</p> <p>The loss of sight by a workman employed in tending furnaces for producing gas by the burning of coal, which resulted from an acute attack of optic neuritis induced by poisonous coal tar gases that the workman was obliged to inhale when in the necessary course of his employment he removed the covers from holes in the tops of the furnaces about seventy times a day in order to ascertain the condition of the fires, is a "personal injury” arising out of and in the course of his employment within the meaning of St. 1911, c. 751, Part II, § 1, entitling him to compensation under the act, there being nothing in the act requiring that the injuries covered by it should be incurred by accident.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries suffered by the plaintiff on October 30, 1911, when he was about four years and seven months of age, by reason of an alleged defect in a public highway of the defendant known as Hillside Avenue, consisting of a smouldering fire of dead leaves on which the plaintiff stepped, whereby he was burned severely. Writ dated December 11, 1911.</p> <p>In the Superior Court the case was tried before McLaughlin, J. The evidence is described in the opinion. One Mrs. Clews, a witness who saw the boy from the window of the house in which she lived on Hillside Avenue, testified to seeing him and later hearing him scream as described in the opinion. The bill of exceptions contained the following statement: “The boy himself did not testify, and there was no direct evidence as to what the boy was doing between the time when Mrs. Clews saw him sitting by the roadside and the time when she saw him afire some twenty minutes or half an hour afterwards.”</p> <p>The judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tax, Assessment. Trust, Taxation.</p> <p>Under St. 1909, c. 490, Part I, § 23, cl. 5, personal property derived from a sale of real estate in the State of New York constituting a part of the estate of a testator who died domiciled in this Commonwealth, which is in the hands of trustees resident in this Commonwealth appointed here under the will of the testator and also appointed by the appropriate court in New York ancillary trustees to hold such real estate and its proceeds, should be assessed to the trustees for purposes of taxation in a town of this Commonwealth in which the persons to whom the income is payable reside.</p>

<p>Bill in equity, filed in the Superior Court on October 30,1912, to enforce the specific performance of an agreement in writing dated April 16, 1912, made by the plaintiff and his late brother Patrick P. Murphy, by compelling the defendant as the administratrix of the estate of said Patrick and as his widow to release to the plaintiff all her interest in the partnership assets of the firm of Murphy Brothers upon receiving from the plaintiff the sum of $3,000.</p> <p>The case was tried before Morton, J. The provision of the contract sought to be enforced was as follows: “And it is further agreed that in the event of the death of the said Patrick P. Murphy before the termination of said five years above set forth, or before the said partnership has been terminated by mutual consent of the parties hereto, that the surviving member of said partnership, Bartholomew P. Murphy, upon payment to the widow, or legal representative of the said Patrick P. Murphy the sum of three thousand dollars, the said Bartholomew P. Murphy will own said entire business, with the stock fixtures and good will thereof absolutely, and as his individual property.”</p> <p>The judge made certain findings of fact, including those that are stated in the opinion, and ruled that under the circumstances the provision in question was not contrary to the policy of the law and that it should be enforced. In pursuance of an order made by him a final decree was entered, ordering that the defendant, as the administratrix of the estate of Patrick P. Murphy, should release to the plaintiff all her interest in and to all of the partnership assets of the firm of Murphy Brothers, including a liquor license, and that upon the defendant releasing her interest as ordered, the plaintiff should pay to the defendant as the widow of Patrick P. Murphy the sum of $3,000 as provided in the agreement of April 16, 1912. The defendant appealed.</p>

<p>Devise and Legacy, Whether to class or individuals.</p> <p>A testator, having created a trust fund from which an annuity was to be paid to his sister during her life, provided that upon her death there should be paid out of the capital to his sister’s daughter, naming her, $15,000 and to each of the three sons of his sister, respectively naming them, $5,000. The sister’s daughter died during the lifetime of the testator leaving no issue. There was nothing in any part of the will to indicate that the bequests to take effect upon the death of the testator’s sister were intended as gifts to her children as a class. Held, that the bequest of $15,000 to the testator’s niece who died before him was an individual one that lapsed and fell into the residue of the testator’s estate.</p> <p>A residuary clause of a will, which provides for the distribution of the residue of the testator’s estate among persons designated or their issue, manifests an intention to dispose of the testator’s entire estate and to avoid intestacy of any portion, so that it clearly includes a lapsed legacy.</p>

<p>Negligence, Employer’s liability, Causing death. Evidence, Presumptions and burden of proof, Materiality. Practice, Civil, Conduct of trial: ordering verdict. Witness, Cross-examination.</p> <p>In an action against a corporation conducting a laundry for causing the death of an experienced engineer in its employ by the escape of steam upon the blowing off of the bonnet of a steam valve of a boiler, where there is no direct evidence of what the deceased engineer was doing at or just before the time of the accident, if there is evidence that it was the engineer’s duty to examine the valve and to tighten it if it needed tightening, and that after the explosion his body was found near the valve and with it the tools that he would have used upon it, and there also is evidence from which it can be inferred that he could not have caused the accident by carelessly loosening the bolt of the valve instead of tightening it, the question whether he was in the exercise of due care is for the jury.</p> <p>Where in an action of tort there is evidence from which inferences can be drawn warranting a verdict for the plaintiff, the presiding judge should submit the case to the jury, even if he afterwards would set aside a verdict for the plaintiff as against the weight of the evidence.</p> <p>In an action against a corporation conducting a laundry for causing the death of an engineer in its employ by the escape of steam upon the blowing off of the bonnet of a steam valve of a boiler, if there is evidence that a bolt of the valve had been left in a defective and dangerous condition for some days, it can be found that the defendant by the exercise of reasonable care could have discovered and remedied the defect, although the defect was not an open and obvious one, so that the engineer, who had no knowledge of it, did not assume the risk of an injury from it.</p> <p>In an action against a corporation conducting a laundry for causing the death of an engineer in its employ by the escape of steam upon the blowing off of the bonnet of a steam valve of a boiler, where the plaintiff has called as an expert witness in regard to the cause of the accident a State- inspector of boilers, and the defendant offers to show by the cross-examination of the witness that he has said, that under no circumstances would he have gone into the place where the engineer was at the time of the explosion to attempt to move the bolts if there were eighty pounds of steam on the boiler and that he would not have attempted to do this if he was in a four acre lot and could run away, it is proper for the presiding judge to exclude the evidence, it being immaterial what the witness would have done and still more immaterial what he said that he would have done.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 17, 1913, by the trustees under the will of Henry L. Tibbetts, late of Lowell, who died on March 21, 1908, for instructions as to a distribution to be made under the twenty-first article of the will disposing of the residue of the testator’s estate.</p> <p>The case was heard upon the bill and answers by Sheldon, J., who at the request of all the parties reserved it for determination by the full court.</p> <p>Henry L. Tibbetts at his death left as his widow Celia Adele Tibbetts, and, as his only next of kin, a daughter, Charlotte A. Tibbetts, afterwards by marriage Charlotte A. Tomkinson, who was born on July 28, 1888, an adopted daughter, Agnes I. Tibbetts, afterwards by marriage Agnes I. Owens, who was born on December 8, 1890, a son, Norris L. Tibbetts, who was born on June 4, 1893, and a son, Howard L.. Tibbetts, who was born on March 29, 1897.</p> <p>These four children of the. testator all were living at the time of the filing of the bill, and none of them had had any issue born.</p> <p>Celia Adele Tibbetts, the widow, was appointed guardian of each of the four children and at the time of the filing of the bill was still the guardian of the minor children Norris and Howard.</p> <p>The trustees accounted to the Probate Court for the administration of the trust up to July 28, 1913, on which date Charlotte A. Tomkinson reached the age of twenty-five years, and on that date the trustees held as the trust fund under the will real estate and personal property of a value, at the valuations shown in this account, of $650,141.30. The time had arrived for the distribution to Charlotte A. Tomkinson and the setting apart for her of a portion of the trust fund in regard to which the plaintiffs sought instructions. The twenty-first article of the will was as follows:</p> <p>“Twenty-first. All the rest, residue and remainder of my estate real and personal, of every kind and nature, and all property and interests without reservation, to which I may be entitled at the time of my decease, I give, devise, and bequeath to my said wife, Celia Adele Tibbetts, and William T. Sheppard of said Lowell, Trustees, and their successors in office as Trustees, chosen and appointed in the manner hereinafter provided, in trust, nevertheless, for the following uses and purposes only:</p> <p>“1. To separate and set off from the remainder of said trust fund, both so far as concerns the charges hereinafter made upon •said trust fund, and so far as concerns the fund which is the basis of and subject to the several distributions hereinafter mentioned, my homestead situated on Mansur Street in said Lowell, or any future homestead acquired by me in place thereof, together with all fixtures and furnishings thereof, including horses and carriages and all the articles of personal property now or at the time of my decease used by myself or family in the occupation and enjoyment of said homestead, and to hold, retain, and maintain said homestead, with the appurtenances thereto, for a home for my said •wife and for my said children, until the youngest of my said children who shall be living at the time of my decease, and who shall live to attain the age of twenty-one (21) years, shall have attained such age. The funds and moneys for the maintenance and support of said homestead and the appurtenances thereto shall be taken and supplied as is hereinafter provided. And when the youngest of my said children who shall be living at the time of my decease and who shall live to attain the age of twenty-one (21) years, shall have attained such age, then and in that event my said Trustees shall cease to maintain said homestead and the appurtenances thereto, and shall apply and treat the same, or the proceeds thereof, for the same purposes and in the same manner in every respect as is hereinafter specified and directed in the case of the final residue and remainder of said trust fund. And I authorize my said Trustees or Trustees for the time being, if they shall deem it for the best interests of my said wife and children, and for the advantage of my estate, during the time that I have hereinbefore directed that said homestead be held in trust, to sell, transfer and convey said homestead on Mansur Street, or any future homestead acquired by me in place thereof. But in case such sale, transfer, or conveyance be made during said period within which I have directed that said homestead be held in trust, I direct that my said Trustees, immediately upon such sale, transfer, or conveyance, procure and provide out of the proceeds therefrom, and if necessary out of other moneys of this trust fund, another suitable homestead, the cost thereof not to exceed twenty-five thousand (25,000) dollars, which newly acquired homestead shall be held by my Trustees for the same purposes, for the same period, and in the same manner in every respect, as is hereinbefore provided in the case of my said homestead on Mansur Street.</p> <p>“2. To separate and set off from the remainder of said trust fund the sum of twenty thousand (20,000) dollars and out of the income thereof, or out of the principal thereof as it may be necessary, to provide for and pay the following annuities:</p> <p>“ (a) To pay to my sister, Isabel C. Kingsbury, of said Charleston, during her life, an annuity of two hundred (200) dollars, payable quarter-yearly from and after my decease, the first payments to be made as soon as may be after my decease.</p> <p>. “ (b) To pay to my sister, Sarah Johnson, of said Charleston, during her life, an annuity of two hundred (200) dollars payable quarter-yearly from and after my decease, the first payment to be made as soon as may be after my decease.</p> <p>“ (c) To pay to my sister, Fanny E. Leighton, of Millbridge, in the State of Maine, during her life, an annuity of two hundred (200) dollars, payable quarter-yearly from and after my decease, the first payment to be made as soon as may be after my decease.</p> <p>. “ (d) To pay to my sister-in-law, Sarah Jennings Tibbetts, widow of Charles F. Tibbetts, of said Charleston, during her life, an annuity of two hundred (200) dollars, payable quarter-yearly from and after my decease, the first payment to be made as soon as may be after my decease.</p> <p>“ And upon the decease of the survivors of the above named beneficiaries and recipients of annuities as aforesaid, then and in that event my said Trustees shall apply and treat the fund hereby set apart, and the income thereof, for the same purposes, and in the same manner in every respect as is hereinafter specified and directed in the case of the final residue and remainder of said trust fund.</p> <p>“3. To use such part of the income of the residuary trust fund to an amount not exceeding the sum of one thousand (1,000) dollars annually, for five years from the first day of March, 1905, as may become necessary to pay the salary of Rev. Harry Taylor, associate or assistant pastor of the First Baptist Church in said Lowell, provided said Taylor continues as said pastor, and said church or the Society connected with said church pays the balance ;at least of said salary.</p> <p>“4. To use such part of the income or of the principal of said residuary trust fund as is necessary for the maintenance and support of said homestead on Mansur Street, in said Lowell, or such other homestead as may be acquired in place thereof in the manner hereinbefore provided, with the appurtenances thereto, and for the proper use and enjoyment of the same by my said wife and children, in the manner and for the period as hereinbefore specified.</p> <p>“5. To use such part of the income or of the principal of said residuary trust fund as is necessary and proper for the support, maintenance, advancement and education of my said children, and each of them, until said child respectively shall attain the age of twenty-five (25) years.</p> <p>“ 6. My said Trustees shall hold the residue and remainder of said trust fund, and the income thereof, after being subject to the aforesaid uses and provisions, and in case of the failure or termination of any or all of the trusts hereinbefore declared and contained as to the whole or any part of the said trust premises, on [or] the income thereof, my said Trustees, shall hold also the said trust premises, and the income thereof, or so much thereof respectively as to which the trust shall so fail or determine, upon trust for such child or children of mine as shall survive me and if he or they attain the age of twenty-five (25) years, and the child or children living at or after my death, of any child or children of mine who shall be dead at my death, or shall die under the age of twenty-five (25) years, and, if more than one, in equal shares as between brothers and sisters; but so that the child or children collectively of any child of mine dead at my death, or dying under the age of twenty-five (25) years, shall take only such share as his, her, or their parent would have taken if living: But said fund and the income thereof, so held in trust, shall vest in said children or their issue as aforesaid as to the whole or any part of said fund, and shall become payable to the beneficiaries aforesaid, only in the manner and at the periods as hereinafter directed.</p> <p>“7. As each of my children who shall be living at the time of my decease shall attain the age of twenty-five (25) years, my said Trustees shall separate and set apart from the said trust fund the proportional share of such child as he or she shall be entitled to under the provisions of the preceding section (section 6) relating to this trust, the amount of the estate from which such share shall be computed to be taken as of the time of such setting apart. And of such proportional share set apart aforesaid, as each of my children shall attain the age of twenty-five (25) years, my said Trustees shall then and at that time pay over, transfer, and deliver absolutely to such child one-half of his or her respective share so set apart. And the remaining half thereof shall continue to be held in trust by my said Trustees, and for the sole benefit of such respective child, but said child shall take no vested interest therein, until such child shall have attained the age of thirty (30) years. And as each of my said children shall attain the age of thirty (30) years, my said Trustees shall then and at that time pay over, transfer, and deliver absolutely to such child the remaining half of his or her respective share set apart as aforesaid, with the income thereof.</p> <p>“8. And if any child or children of mine now living, or born hereafter, shall have died in my lifetime, leaving issue living at my decease, or if any child or children of mine living at my decease shall die before reaching the age of twenty-five (25) years, or shall die between the ages of twenty-five (25) and thirty (30) years, leaving issue living, then and in any of such events, my said Trustees shall pay over, transfer, or divide to and among such issue as shall attain the age of twenty-one (21) years, such part of the said trust fund as, in case such parent died before attaining the age of twenty-five (25) years, would have been such parent’s respective share to be set apart as hereinbefore directed, and in case such parent died between the ages of twenty-five (25) years and thirty (30) years, such part of such parent’s respective share as had not already been paid over and transferred to such parent; in equal shares as between brothers and sisters among such issue, but so that the child or children collectively of any child of mine dead at my decease, or dying under the age of twenty-five (25) years, or between the ages of twenty-five (25) years and thirty (30) years, as the case may be, shall take only such share as his, her, or their parent would have taken, or would have taken in addition to what had already been paid such parent under the provisions of this trust, if living.</p> <p>“9. And if any child or children of mine living at my decease, shall die before reaching the age of twenty-five (25) years, or shall die between the ages of twenty-five (25) years and thirty (30), years, leaving no issue, then and in either of such events, such child’s share in the trust fund, in case he or she died before reaching the age of twenty-five (25) years, or the unpaid half of such child’s share, in case he or she died between the ages of twenty-five (25) years and thirty (30) years, shall be joined and retained to and with the general trust fund held for my children or issue as aforesaid, and shall be applied and treated by my Trustees for the same purposes and in the same manner in every respect as is directed in the case of the general trust fund to be held by my Trustees for my children or their issue as aforesaid; and shall be distributed in the same manner and under the same conditions as said general trust fund: But any child or children of mine, or any issue of a deceased child, who may have received the whole or any part of his, her, or their proportional share of the general trust fund before such new distribution shall take place, shall nevertheless be entitled to his, her, or their proportional share of the new distribution, in the same proportion and in the same manner as is hereinbefore provided.</p> <p>“10. And although the periods of distribution and of partial distribution of the said trust fund, as hereinbefore stated, are different and distinct for each of my several children, due to the difference in their several ages, it is my desire, and I so direct, that my Trustees use every reasonable effort to treat each of my children living at my decease, and attaining the ages as herein-before specified, in an equal and impartial manner, as it has been my endeavor to secure that end under the provisions of this my will. And it is my intention, and I so direct, that no child or children of mine shall have a vested interest in any part of said trust fund, or in any share or part of a share set apart for such child or children, so far as concerns the right to demand distribution, the right of disposing of the same by will or otherwise, or the right of inheritance, until such child or children be entitled under the provisions of this will to the payment of his or her share or part of a share thereof.</p> <p>“11. And none of the estate herein bequeathed or devised, so long as the same shall be held in trust, under the provisions herein contained, shall be subject to the power of alienation, assignment, anticipation, or attachment by or against the beneficiaries hereinunder entitled, and the said estate shall all be free from the interference or control of creditors; and any such attempted alienation, assignment, anticipation, or attachment on the part of or against any of the beneficiaries hereinunder entitled shall be null and void and of no effect.</p> <p>“ 12. And I authorize my said Trustees, or my Trustees for the time being, at any time or times to sell the whole or any part or parts of the said trust estate, both real and personal, either together or in parcels, and either by public auction or by private contract, and upon such terms and subject to such conditions and in such manner in all respects, as they shall deem proper and best for my estate — and the purchasers, at any such sales from my said Trustees or their successors, shall not be required to see to the application of the purchase money — with power to buy or rescind, or vary any contract for sale, and to resell without being responsible for loss, and for the purpose aforesaid to execute all such deeds, assurances, and other papers as they shall judge best for all concerned. And I authorize my said Trustees at any and all times to invest and reinvest the whole or any part or parts of the said trust estate at their discretion. But in all their investments and reinvestments, my Trustees are expressly limited and nothing herein contained shall be otherwise construed, to that class of property which by the laws of this Commonwealth is held to be proper and suitable for the investment of trust funds.”</p> <p>The case was submitted on briefs.</p>

<p> Devise and Legacy. </p> <p>A testator by his will directed that upon the death of the survivor of his wife and children, the trustee under his will should convey and deliver certain real estate and a fund of $60,000 to the State of New Hampshire, to hold the property and apply the income of the fund for the support, maintenance and education of the indigent blind of that State. By a codicil he directed that the trustees should not convey the property or deliver the fund “ until said State shall have by proper legislation accepted the said real estate and said reserved sum, for the use mentioned in my said will and upon the conditions following.” The conditions named were that the State never should sell or dispose of the real estate and should not lease any part of it for a longer term than five years, that the State should keep the buildings on the real estate in good repair and in case of their destruction should rebuild them, and that on receiving the fund of $60,000 the State should, pay and make good as the income thereof the amount of six per cent per annum thereon, and, after defraying necessary expenses, should apply the net income of the fund and the rents from the real estate to the aid, support and education of the indigent blind of the State of New Hampshire. In the year following the death of the testator, the Legislature of the State of New Hampshire by a joint resolution accepted the gift “for the uses and upon the conditions named in said will.” Forty-three years later, while some of the children of the testator still were living, the Legislature of the State of New Hampshire by another joint resolution reaffirmed its acceptance of the gift “for the uses and upon the conditions named in said will.” Held, that it was a condition precedent to the vesting of the gift that the State of New Hampshire by proper legislation should accept the devise and bequest for the uses stated in the will and upon the conditions prescribed in the codicil, that the State of New Hampshire had complied with this condition precedent and accordingly had acquired a vested remainder in the property; and that it was not necessary to consider whether the provisions of the codicil also constituted conditions subsequent, a breach of which in the future might make defeasible the title of that State.</p>

<p>Bill in equity, filed in the Superior Court on April 12, 1913, by the trustee in bankruptcy of LeRoy E. Cole of Natick, seeking to set aside a foreclosure sale under a chattel mortgage and also to have the mortgage note and mortgage declared to be invalid.</p> <p>The case was referred to William B. Orcutt, Esquire, as master. Both parties filed exceptions to the master’s report. The plaintiff also filed a motion to recommit the report to the master.</p> <p>The case was heard by McLaughlin, J., who denied the motion to recommit the report, and made an interlocutory decree overruling the plaintiff’s exceptions to the master’s report and sustaining the exceptions of the defendants. The plaintiff appealed.</p> <p>Later the same judge made a decree, declaring that the sale on April 7, 1913, under the power in the" mortgage was void and of Ono effect, and that there was due to the defendant Ahern from the bankrupt upon the mortgage note the sum of $2,496.81; and ordering that, upon the payment by the plaintiff of that sum with interest thereon to the day of payment within twenty days from the date of the decree, the defendant Ahern should execute and deliver to the plaintiff a discharge of the mortgage, should cancel and deliver up to the plaintiff the mortgage note thereby secured and should deliver to the plaintiff the mortgaged property in the possession of the defendant Ahern, and that the defendant Ahern should pay to the plaintiff the sum of $137; and that, upon the failure of the plaintiff to pay the sum of $2,496.81 within the twenty days specified, the bill should be dismissed.</p> <p>After the expiration of the twenty days a final decree was entered by order of the same judge, declaring that, it having appeared to the court upon a further hearing that the plaintiff had not paid the amount due upon the mortgage held by the defendant Ahern within the time fixed by the decree of the court, it was ordered that the bill be dismissed. The plaintiff appealed.</p>

Bill in equity, filed in the Probate Court for the county of Suffolk on August 28, 1912, by the administrator with the will annexed of the estate of John A. Bell, who died on March 25, 1911, for instructions as to whether the plaintiff should pay over the residue of the estate of the testator to Mary Jane Harris, formerly Mary Jane Bell, the surviving daughter of the testator, or to the executor of the will of Jane B. Bell, the widow of the testator, who died on December 13,…

<p>Insurance, Fidelity. Bond.</p> <p>A bond of fidelity insurance, by which a guaranty company agrees to make good to a so called employer any loss sustained through the fraud or dishonesty of a so called employee, who is described as an agent or collector receiving a commission on accounts assigned to the so called employer, does not cover a misappropriation by the person named as such employee of money collected by him from accounts receivable, which had been due to him from his customers in a printing business carried on by him in his own name and had been assigned by him from time to time to his so called employer on "being paid in cash the value of the accounts less from fifteen to eighteen per cént, there having been annual settlements between the parties and the transactions during a period of five years having resulted in an average profit to the so called employer of about one and one half per cent a month, and the so called employee during that period never having received a commission or any other compensation for collecting the assigned accounts.</p> <p>In the present case, although the transaction between the so called employer and the so called employee could have been found to be a running account by way of loan secured by accounts assigned by the so called employee, yet the jury were not bound as matter of law to find this. Nor could the jury have been instructed that the so called employee had authority to use in his business the money thus collected by him, in which case his failure to account for the sums so collected would not have amounted to embezzlement and would not have been covered by the bond for that reason.</p>

<p>Carrier, Of goods: limitation of liability. Bill of Lading. Contract, In writing. Agency.</p> <p>Where the agent of a person shipping a horse for transportation by rail, who was described in the bill of lading as the “shipper’s agent,” could not read nor sign his name, and his signature to the bill of lading as shipper’s agent was made “by his mark,” which was witnessed by the carrier’s agent who received the horse for transportation, and where the shipper’s agent testifies that the carrier’s agent did not read the bill of lading to him “or say anything about it and asked no question as to whether he wanted the high rate or the low rate; that he didn’t know whether the rate which he had was the high rate or the low rate,” and there is no evidence that the duplicate of the bill of lading given to the shipper’s agent ever reached the shipper or the consignee, neither the shipper nor the consignee is bound as matter of law by a stipulation contained in the bill of lading limiting the carrier’s liability to $100 in consideration of the reduced rate of the freight charge.</p>

<p>Judgment. Estoppel. Bond, To dissolve attachment. Election. Surety. Letter. Attachment. Supplementary Process. Interest. Bills and Notes. Pledge, Right to collateral by subrogation. Practice, Civil, New trial.</p> <p>A decision that a surety on a bond given to dissolve an attachment, who sued as the assignee of the principal on the bond, had the right to a sum of money in the hands of a deputy sheriff by whom it was attached, because the bond given by the plaintiff and his assignor was a valid one, is certainly no bar to an action on the bond brought by the original plaintiff to whom the bond was given; and, if the doctrine of res judicata were applicable at all, it would seem, to operate in favor of the plaintiff in his action on the bond.</p> <p>The plaintiff in an action on a bond to dissolve an attachment is not estopped from maintaining the action by the fact that in previous litigation he took the position that the bond was invalid, if it does not appear that the defendant relied upon the conduct of the plaintiff in this regard or was deceived by it to his harm, but on the contrary it appears that the defendant continuously combated that contention until he established the validity of the bond.</p> <p>Where a plaintiff in an action at law has obtained a judgment against the defendant, and a sum of money is still in the hands of an officer by whom it was attached in the plaintiff’s behalf, although the defendant has given the plaintiff a bond to dissolve the attachment, if the plaintiff is doubtful about the validity of the bond, he does not lose his remedy on the bond by first trying to hold the money in the hands of the attaching officer.</p> <p>A plaintiff in an action at law who has recovered judgment against the defendant and holds a bond given to him by the defendant with a surety to dissolve an attachment of money, in no way waives or loses his right to sue the surety on the bond by bringing an action on the judgment against the principal debtor.</p> <p>The failure to answer a letter which there is no duty or obligation to answer cannot constitute an election of remedy or a waiver of rights.</p> <p>Where a bond under seal was given to dissolve an attachment of money, and the attaching officer thereafter wrongly retained the money, contending, at the instigation of the attaching plaintiff, that the bond was invalid, but the original defendant and his surety who gave the bond, in an action against the officer, recovered the amount of the attached money from him on the ground that the bond was valid and the attachment thereby dissolved, there is no ground on which it can be contended that there was a failure of consideration for the bond; and the surety on the bond cannot escape his liability to pay the amount of the judgment to the extent of the penalty of the bond by setting up the mistake of the original plaintiff as to the character and effect of the bond.</p> <p>A precept for attachment on supplementary process is ancillary to the original writ and does not affect its essential terms.</p> <p>In an action on a bond to dissolve an attachment, where the condition of the bond was the payment to the attaching plaintiff of the amount of his final judgment within thirty days after it was entered, the failure to make such payment is a breach of the condition of the bond, which creates an immediate right of action against the surety on the bond without any demand, and interest is to be allowed from the date of the default. It is not necessary to show that an execution was issued and was returned by the officer unsatisfied in order to establish liability on such a bond.</p> <p>An accommodation maker of a promissory note for the benefit of the payee, who indorsed and negotiated it, is, as between the parties to the transaction having notice of these facts, a surety, and thus is entitled upon paying the note to the benefit by subrogation of collateral security pledged by the principal debtor in the hands of the holder of the note; and the surety on a bond, given by such accommodation maker to dissolve an attachment in an action against him on the note, is in turn entitled upon payment of his obligation under the bond to be subrogated to the rights of subrogation of such accommodation maker; and for this reason the surety when sued on the bond is entitled to have deducted from the amount for which execution is to issue the value of the collateral security held by the plaintiff.</p> <p>In an action on a bond to dissolve an attachment where, after a finding for the plaintiff by the trial judge, the case came before this court on numerous exceptions alleged by the defendant, only one of which, relating to a subordinate point, was sustained, it was ordered that the further hearing of the case should be confined to that point.</p>

<p>Contract by the collector of taxes of the city of Boston to recover a tax of $24,600 assessed on December 20, 1912, upon personal property of the defendant for the year 1912. Writ dated June 5, 1913.</p> <p>In the Superior Court the case was submitted to Crosby, J., upon an agreed statement of facts, including the facts stated in the opinion. For many years the defendant had had offices both at Boston and at the cemetery. The office of the president, the treasurer and the secretary was and had been for many years in Boston. Under an article of the rules and regulations of the corporation stated meetings of the trustees were held at the offices in Boston, and all meetings of the corporation and of the trustees had been held there. These offices consisted of three rooms hired by the corporation in an office building, and were occupied regularly by the secretary, the treasurer and a clerk. The secretary kept there the records of the meetings of the corporation and of the trustees, and the treasurer kept his books of account there.</p> <p>The defendant asked the judge to make the following rulings: “1. On all the evidence this action cannot be maintained.</p> <p>“2. The defendant is not an inhabitant of Boston.</p> <p>“3. The plaintiff is not entitled to recover interest from November 1, 1912.</p> <p>"4. The plaintiff is not entitled to recover any interest.”</p> <p>The judge refused to make the first, second and fourth rulings requested, made the third ruling, and found on the agreed statement of facts that the defendant was an inhabitant of Boston and that the plaintiff was entitled to recover the amount of the tax assessed with interest thereon from the date of the writ; and thereupon reported the case for determination by this court. If either of the first two rulings requested should have been given, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiff in the sum of $24,600, with interest from such date as this court might decide to be the proper one.</p> <p>The case was argued at the bar in December, 1913, before Rugg, C. J., Hammond, Braley, & Be Courcy, JJ., and after-wards was submitted on briefs to all the justices except Boring, J.</p>

<p>Equity Pleading and Practice, Decree. Interest.</p> <p>By the decision in Clayberg v. Comue, 216 Mass. 448, 455, it was declared that the plaintiffs, under an agreement in writing between them and certain heirs at law of an alleged testator who had received shares of his estate under an agreement of compromise approved by a court of another State, were entitled to be paid the sum of $10,000 out of the shares of the defendants from such estate in the hands of the ancillary administrator in this Commonwealth. The agreement in writing, which was a carefully drawn instrument, provided that the sum of $10,000 should be paid to the plaintiffs by the defendants “out of the moneys now in Boston belonging to the estate of [the testator] when distributed to them.” No mention was made of interest or of a share in the earnings of the fund in the hands of the administrator. The plaintiffs contended that the final decree under the rescript ordered by this court in the above named decision should award to them, not only the sum of $10,000 mentioned in the contract, but also a proportional part of the income received by the ancillary administrator from the fund while it had remained in his hands. Held, that, even if such a claim on the part of the plaintiffs could be presented for the first time after the issuing of the rescript, which was not passed upon, the decree should order the payment to the plaintiffs only of the sum of $10,000 with no interest or share in the earnings of the fund in the nature of interest.</p>

<p>’ Negligence, In use of highway.</p> <p>Where, in an action against a proprietor of taxicabs, it might have been found, upon evidence irreconcilably conflicting, that the plaintiff, being about to cross a congested city street and seeing an approaching taxicab of the defendant from twenty to twenty-five feet away under circumstances which led him to form a judgment that there was ample time for him to pass in front of it, started for the other side of the street and was struck by the taxicab and injured, it was held, that the questions, whether the plaintiff was in the exercise of due care and whether the driver of the taxicab was negligent, were for the jury.</p>

<p>Contract, for the benefit of Ada Alpert, against the surety on a bond given to the plaintiff as the treasurer of Chelsea by one Max Sherman, who was licensed by the mayor and aider-men of that city under R. L. c. 108, § 36, as a private detective. Writ dated April 24, 1912.</p> <p>In the Superior Court the case was submitted to Hall, J., upon an agreed statement of facts, as follows: The bond sued</p> <p>upon was dated April 29, 1909. It was executed by Max Sherman as principal and by the defendant as surety. The amount of the penalty was $3,000 “to be paid unto the said treasurer of the City of Chelsea and his successors in said office.” The condition was as follows: “The condition of this obligation is such, that whereas, said principal has been licensed by the Mayor and Board of Aldermen of the City of Chelsea, a Private Detective, for the detection, prevention and punishment of crime, for the term of one year from April 29, 1909, to April 29, 1910. Now, therefore, if the said principal shall properly discharge all the services which he may perform by virtue of such license, then this obligation shall be null and void; otherwise it shall remain in full force and effect.”</p> <p>A short time before November 8, 1909, the principal, Sherman, as a private detective, was employed by one Alpert, who was then the husband of Ada Alpert, to obtain evidence of adultery of his wife to enable him to procure a divorce, and in pursuance of this plan Sherman with five assistants forcibly entered the premises of one Dora Richmond, the mother of Ada Alpert; that on November 8,1909, Ada Alpert began an action against Sherman for trespass, assault and slander, as shown by the records of the Superior Court; that the judgment obtained in that action, although demand had been made upon it, had in no part been satisfied; that while Sherman was on the premises in the service of Alpert he then and there declared that he was a detective and made slanderous charges against Ada Alpert by the use of words set forth in the declaration in the action brought by her and demanded an explanation of her conduct and then and there committed the assault and other acts set forth in the declaration in that action; that on November 9, 1909, a letter was sent to the defendant giving it notice of the bringing of the action by Ada Alpert against Sherman, and on December 8,1911, another letter was sent to the defendant giving it notice that judgment had been recovered against Sherman in that action.</p> <p>Upon the agreed statement of facts the judge found for the defendant, and at the request of the parties reported the case for determination by this court.</p> <p>The case was argued at the bar in November, 1913, before Rugg, C. J., Hammond, Loring, Braley, & De Courcy, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Two actions of tort by the same plaintiff against different defendants for personal injuries sustained by the plaintiff on December 23, 1911, when, as an electrician in the employ of the Otis Elevator Company, he was engaged in installing a receptacle for electric lights at the top of a freight elevator in the Crosby Building, which was then in process of construction and was numbered 480 on Washington Street in Boston. Writs dated July 15, 1912.</p> <p>In the Superior Court the cases were tried together before Quinn, J. It was admitted that the defendant Whitney was the general contractor in charge of the construction of the Crosby Building; that the defendant Townsend was a subcontractor having a contract with the defendant Whitney for the plastering of the building; that the Otis Elevator Company was a separate contractor, whose contract was with the owners of the building and not with the defendant Whitney. Its contract was to install the freight and passenger elevators in the building. The facts which could have been found upon the evidence are stated in the opinion.</p> <p>The judge ordered a verdict for each of the defendants; and the plaintiff alleged exceptions.</p>

<p>Contract, What constitutes, In writing. Damages, In contract.</p> <p>Where, in an action for the breach of an alleged contract to deliver bricks of the quality and color of a certain sample, correspondence between the parties is put in evidence, but the jury properly can find that the letters were preliminary to an interview in which the terms of the sale were settled and the order for the bricks was given and accepted, and where the testimony is conflicting and irreconcilable as to what these terms were, it is for the jury to determine whom they will believe and what the oral contract was.</p> <p>In an action for the breach of an alleged contract to deliver to the plaintiff, who in connection with a contract to build a dwelling house had agreed to build a certain brick wall, bricks that were in color like a sample that had been accepted by the architect, where it appears that the plaintiff, by reason of the color of the bricks furnished by the defendant, had been required by the architect to demolish the wall and to rebuild it with other bricks, and there is evidence that on account of wet weather when the wall was laid, the natural color of the bricks was not disclosed until after they had been used, the plaintiff, if he proves a breach of the contract, should be allowed to recover, not only for the difference in value between the bricks furnished by the defendant and bricks of a color like that of the sample, but also the expense necessarily incurred by him in taking down and rebuilding the wall.</p>

<p>Contract on a promissory note for $700, signed by the defendant and payable to the plaintiff, dated September 28, 1908, and reciting the deposit as collateral security of seven shares of the capital stock of the American Biscuit Company. Writ in the Municipal Court of the City of Boston, dated November 5, 1912.</p> <p>The material allegations contained in the answer are described in the opinion.</p> <p>On removal to the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. The plaintiff, as there stated, asked for nine rulings, the last four of which were made by the judge. The plaintiff waived his request for the second ruling and the third was held by this court to have been made in substance by the judge. The other rulings asked for by the plaintiff were as follows:</p> <p>“1. That upon all the evidence the plaintiff is entitled to a verdict.”</p> <p>"4. It is the duty of every stockholder of a corporation to attend the stockholders1 meetings and to vote in accordance with his best judgment, and an agreement to vote in a certain way for a private reward constitutes no consideration.</p> <p>“5. It is the duty of every stockholder of a corporation to attend stockholders’ meetings and to vote in accordance with his best judgment, and an agreement to vote in a certain way for a private reward is void as against public policy.”</p> <p>The judge refused to make either of these rulings, and instructed the jury that the agreement relied upon by the defendant, if proved, constituted a defense to the action. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort under St. 1909, c. 514, § 127, cl. 2, for personal injuries sustained by the plaintiff on February 20, 1911, while employed in the defendant’s lumber yard at Fall River. Writ dated October 4, 1911.</p> <p>In the Superior Court the case was tried before White, J. The evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant on the fourth count of the declaration, which was the only count relied upon by the plaintiff and was under the clause of the statute named above. By agreement of the parties the judge reported the case for determination by this court. If there was sufficient evidence to go to the jury on the ground of negligence of a superintendent or of one acting as a superintendent, judgment was to be entered for the plaintiff in the sum of $750; otherwise, judgment was to be entered for the defendant.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries alleged to have been caused by a defect in or the want of a sufficient railing at the grade crossing of the defendant’s tracks with Massachusetts Avenue, á public highway, in that part of Arlington called Arlington Centre, which it was alleged to have been the duty of the defendant to maintain in safe condition and repair. Writ dated August 11, 1909.</p> <p>In the Superior Court the case was tried before Pratt, J. At the close of the evidence, which is described in the opinion, the judge ordered a verdict for the defendant, and by agreement of the parties reported the case for determination by this court. If the ordering of the verdict was erroneous, the case was to be remanded for the assessment of damages by a jury; otherwise, judgment was to be entered for the defendant.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff on May 21,1911, when she was a passenger on a street railway car of the defendant, by reason of the alleged negligence of the defendant’s servants in starting the car when the plaintiff was in the act of alighting from it at or near the defendant’s car barns on Mount Auburn Street in Cambridge. Writ dated July 15, 1912.</p> <p>In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. The defendant asked the judge to make certain rulings, of which the first and second were as follows:</p> <p>“1. There is no evidence of negligence on the part of the motorman.</p> <p>“2. There is no evidence of negligence on the part of the conductor.”</p> <p>The judge refused to make these rulings, and also refused to make the fifth ruling requested by the defendant, but the exception to the refusal of this ruling was waived by the defendant at the argument.</p> <p>The judge gave to the jury the following instructions requested by the plaintiff, subject to exceptions by the defendant:</p> <p>“2. The defendant owes a high degree of care to allow its passengers to properly and safely alight from its cars.</p> <p>“3. The defendant owed a higher degree of care to the plaintiff, its passenger, than it did to a pedestrian or a person on the highway.”</p> <p>The defendant also excepted to the following portion of the judge’s charge:</p> <p>"The evidence would not show in this case specifically whose negligence it was, if you find negligence, — whether it was negligence of the conductor or of the motorman; but the fact, that a car starts, in itself, having come to a stop, at a time when it is dangerous for the passengers, our Supreme Court have said is evidence of negligence on the part of some one connected with the car, — and you are not obliged to determine which one was guilty of that negligence, if there was negligence, whether it was the conductor or the motorman.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $450; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Auditor’s report, Order for recommittal to auditor. Interest. Damages, Recoupment. Words, “Further hearing,” “Mistrial.”</p> <p>The words “further hearing” used in a rescript of this court, unless expressly limited, ordinarily import a new trial involving the introduction of evidence upon those matters as to which the new or further hearing is to be had.</p> <p>The word “mistrial” commonly is used, not to indicate a mere erroneous ruling, but to designate the existence of such fundamental errors at a trial as to vitiate the result.</p> <p>Where by a rescript of this court in an action of contract a further hearing before an auditor is ordered upon certain claims for damages, and, after a recommittal of the case, the auditor reports that as to a certain part of a period of inexcusable delay, “no further evidence was introduced before” him “by either party covering any portion” of the time in question, although a formal offer of proof was made by one of the parties for the purpose of protecting its rights upon an appeal from the order of recommittal, the finding of the auditor in his new report is not impaired because after the order of recommittal no further evidence was heard by him as to the period in question, and upon such final report of the auditor the case may be ripe for judgment.</p> <p>After an action of contract has been heard by a judge upon an auditor’s report, and the judge makes a finding that a fair trial has been had before the auditor and a just conclusion has been reached by him as to the question of liability and as to some of the elements of damage, the judge properly may make an order recommitting the case to the auditor and limiting by such order the new hearing before the auditor to certain other elements of damage which the judge finds not . to have been determined already.</p> <p>In an action of contract, where the defendant claims damages in recoupment, and it appears that the plaintiff is entitled to recover the net amount of the damages proved by him after the deduction of the amount of the damages proved by the defendant on his claim in recoupment, if the plaintiff is allowed interest on the whole of his claim, the defendant is entitled to be allowed interest on the amount of damages in recoupment proved by him, this producing the same result as if the plaintiff were allowed interest from the date of the writ on the net amount to be recovered by him.</p> <p>In an action of contract for the breach of an agreement in writing, where the defendant has claimed damages in recoupment and also has brought a cross action for a breach of the same agreement by the original plaintiff, the fact that the defendant has been allowed to prove certain damages in recoupment in the first action is no reason why he should not be allowed to recover other damages in his cross action, especially where the two cases are tried together and all the claims of each party have been passed upon and determined.</p>

<p>Landlord and Tenant, Control of premises by owner in spite of pretended lease, ' Liability of landlord for defect in common stairway.</p> <p>In an action against the owner of a tenement building, by a woman who had occupied one of the tenements as a tenant for nine years, for personal injuries from a fall caused by the giving way of a defective railing of the platform of an iron stairway at the rear of the building used in common by the various tenants, where there is ample evidence that the railing, although apparently in good condition, was so eaten into by rust as to afford no real protection, and that this defective condition would have been discovered by a seasonable examination, and where the defendant produces in defense a paper purporting to be a lease of the entire building to a third person, but the plaintiff contends that the alleged lease is a sham to shield the defendant from the responsibilities of ownership, and introduces evidence tending to show that the defendant at the time of the accident, in spite of the pretended lease had retained control of the building, including the platform and railing, the question, whether the defendant retained such control and thus owed to the plaintiff the duty of maintaining the railing in as good condition as it appeared to be in when the plaintiff began her last tenancy, is for the jury.</p>

<p>. Bill in equity, filed in the Superior Court on July 3,1911, and afterwards amended, alleging the following facts in substance: The plaintiff on or about June 1, 1909, was the owner of about twelve hundred acres of land in the State of Vermont, covered with a large amount of standing timber, both soft and hard wood, all of great value, and also was the owner or in actual control of the entire capital stock of the Farrar Lumber Company, a Massachusetts corporation which owned a portable sawmill of the value of $6,000, then located in the State of Maine. The timber land was subject to a mortgage for $5,000, held by one Mosher, and there also was outstanding a mortgage given by the plaintiff in the sum of $4,500 held by one Jones, $3,000 of which was a second mortgage on the timber land, and $1,500 of which was an incumbrance on the sawmill.</p> <p>On or about June 1, 1909, the plaintiff entered into an agreement with the defendant as follows: The plaintiff agreed to transfer or cause to be transferred to the defendant one half of the capital stock of the Farrar Lumber Company, and to vote for the defendant as treasurer of that corporation. The plaintiff and the defendant further agreed to move the sawmill from its then location to the plaintiff’s property at Hancock, Vermont, and to proceed to cut the soft timber, using the mill to prepare it for sale. The defendant agreed to supply whatever money was necessary for the removal of the mill to Hancock, and for the lumber operations on the plaintiff’s property at Hancock, and to pay the plaintiff for the soft timber on the land the sum of $5,000. The defendant was to have the general control of the cutting and marketing of the timber and was to receive the proceeds of all sales thereon for his own account. The plaintiff was to manage the work of cutting the timber and of operating the mill, and was to receive therefor the sum of $100 per month for his services. In addition to the payment of the sum of $5,000 for the timber the defendant agreed to pay off the first mortgage on the land held by Mosher, the plaintiff expecting and intending to pay off the second mortgage out of the sum of $5,000 to be paid to him by the defendant.</p> <p>At or near the date of the agreement the defendant represented to the plaintiff that he had caused the formation of the North American Spruce Lumber Company, a Maine corporation, which was to acquire, own and operate various parcels of timber land from time to time, that he the defendant did and would control the North American Spruce Lumber Company, and that he would cause the use of the sawmill in the operation of its property by the North American Spruce Lumber Company under contracts which would result in profit to the Farrar Lumber Company, and consequently to both the plaintiff and defendant as owners of the stock thereof. The defendant did cause the formation of the North American Spruce Lumber Company, and did control it. He turned over to it certain options and rights in timber lands, including his rights in the plaintiff’s property at Hancock, Vermont, and caused the transfer to himself of all of its capital stock, with the exception of a few shares which he caused to be issued to his nominees, directors therein.</p> <p>The defendant neglected and refused to pay to the plaintiff the $5,000, with which he could have paid the second mortgage, before that mortgage fell due, and the plaintiff was unable to pay it. The defendant thereupon, “wrongfully and without right and in violation of the said agreement” and as a condition precedent to the payment by the defendant of that mortgage for and on account of the plaintiff, required the plaintiff to convey the timber land to the North American Spruce Lumber Company as security for the money advanced by the defendant to pay the second mortgage, the defendant agreeing to be responsible to the plaintiff for the value thereof or for the return of the property to the plaintiff at the end of the lumber operations at Hancock.</p> <p>The plaintiff conducted the lumber operations at Hancock and received the sum of $100 per month for his services as agreed. He had no knowledge of the lumber operations outside of the actual cutting of the timber and the operation of the sawmill.</p> <p>When the lumber operations were about completed the defendant requested the plaintiff to cause the mill to be conveyed to the North American Spruce Lumber Company, representing that it would be for the best interests of the plaintiff so to do, and that he, the defendant, would account for its value, and the plaintiff did so, receiving no consideration; and no consideration was paid to the Farrar Lumber Company.</p> <p>The plaintiff often and without avail demanded payment of the $5,000 by the defendant, and an accounting of the amounts received by the defendant from the North American Spruce Lumber Company or from any other source for the properties so conveyed to that company for the joint account of the plaintiff and defendant or from the operation and use thereof by the defendant or by the North American Spruce Lumber Company.</p> <p>The defendant represented to the commissioner of corporations of Massachusetts that the Farrar Lumber Company had ceased to do business, that its property had all been conveyed to the North American Spruce Lumber Company, and that it desired to have its corporate existence terminated under the direction of said commissioner. The plaintiff had no knowledge of such action on the part of the defendant until long afterward, never consented thereto, and by reason thereof whatever rights or interest he had in the Farrar Lumber Company were totally lost.</p> <p>There also was an allegation that the account between the plaintiff and the defendant was complicated and made up of many items, covering a long period of time, as to the details of which the plaintiff had no specific knowledge.</p> <p>The prayers of the bill were for an accounting by the defendant covering all the matters and things enumerated in the bill; that the defendant be ordered to account for the value of the timber land deeded by the plaintiff to the North American Spruce Lumber Company, or, in default thereof, that he be ordered to cause a deed of the land to be executed and delivered to the plaintiff, free of all incumbrances; for an execution against the defendant for the amount found to be due the plaintiff; and for general relief.</p> <p>The defendant demurred to the bill upon the grounds that it did not set forth any right to relief in equity; that it appeared that the plaintiff had a plain, adequate and complete remedy at law; that the bill was multifarious, and that the corporations named therein were necessary parties but were not joined therein.</p> <p>The demurrer was heard by Morton, J., who overruled it, and reported the case to this court for determination, certifying that he was of opinion that his order so affected the merits of the suit that the questions raised by the demurrer ought to be determined by this court before further proceedings.</p>

<p>Municipal Corporations, Issue of bonds. Lincoln.</p> <p>After a town has expended, in extending its waterworks system, money raised by taxation and appropriated for that purpose by votes of preceding annual meetings which did not express any intention of the town to provide funds for the proposed extension by borrowing money in accordance with special acts giving it power to do so, it cannot authorize by vote an issue of bonds to provide funds to “reimburse the treasury on account of” the money so expended. Under existing legislation applicable to the town of Lincoln, one of its departments cannot occupy the relation of debtor to the town of which it is an integral part.</p>

<p>Trust, What constitutes. Devise and Legacy, Designation of trustee. Equity Jurisdiction, Bill for instructions. Probate Court.</p> <p>A will provided that three sons of the testator should be executors. A seventh paragraph contained a provision that, “except as hereinafter provided, I give, devise, bequeath and appoint to ” two of the sons “ the management and control ” of the residue of the estate "together with the income thereof... for a term of ten years” or until the death of the survivor of such two sons, each of them to receive a certain sum and a certain portion of the net profits of the management for his services, $12 each week to be paid to the third son, and the rest of the net profits to be used in reducing the indebtedness of the estate. At the end of the ten years or upon the death of the survivor of the two sons so named, the estate was to be divided among the three sons and a daughter of the testator or their issue by right of representation, the interest of the third son, according to a ninth paragraph, to beheld in trust by his brothers as trustees. The eighth paragraph gave a majority of the executors power at their discretion within the ten years to sell any and all of the property included in the residue and to use the proceeds to pay off incumbrances or for investment, paying the income to the trustees mentioned in the preceding paragraph. Held, that the provisions of the seventh paragraph constituted a trust, even though the word "trust” was not used, and that it did not appear that the third son was intended to be a co-trustee with the two therein named.</p> <p>An executor cannot maintain a bill for instructions as to what his duties will be upon the happening of a future event.</p> <p>Where, in a suit in equity in the Probate Court by three executors of a will for instructions, all parties interested are before the court, and one question upon which instructions are sought is whether on a proper interpretation of one paragraph of the will all of the executors or only two of them were named as trustees, it is proper for the court, having determined that the testator intended that only two of the executors should be appointed trustees, to entertain and to grant, without the issuance of a further citation, a petition for the appointment of such trustees.</p>

<p>Tax, On successions. Statute.</p> <p>In St. 1907, c. 563, relating to the taxation of legacies and successions, the provision of § 25, that “this act shall not apply to estates of persons deceased prior to the date when it takes effect, or to property passing by deed, grant, sale, or gift made prior to” the date when the statute took effect, prevents the imposition of a tax under that statute upon a sum which, under the provisions of a trust deed that went into effect in 1897, directing the trustees on the death of the grantor to pay over the trust fund to his children, came into possession of a child of the grantor on the death of the grantor after the statute went into effect.</p>

<p>Equity Pleading and Practice, Master’s report: rulings on evidence, motion to recommit. Labor Union. Equity Jurisdiction, To enjoin unlawful interference with business, Damages. Boycott. Damages, In equity.</p> <p>On a motion in a suit in equity to recommit a master’s report based on rulings of the master admitting evidence at the hearing before him, if it appears that the evidence thus objected to was admitted at the hearing before the master without objection and that no motion was made before the master to strike out this evidence, the motion to recommit is addressed merely to the discretion of the trial judge, and where, as in the present case, there is no reason to suppose that his discretion was exercised wrongly, a denial of the motion by him is final.</p> <p>A dealer in masons’ supplies may maintain a suit in equity against the members of a labor union, who are bound by their rules and votes not to use or work upon any material purchased from dealers declared by the union to be "unfair,” to enjoin the defendants from declaring the plaintiS to be "unfair” because he continued to furnish masons’ supplies to a building contractor declared by the union to be “unfair;” such action against the plaintiff being in intention and effect a boycott.</p> <p>A boycott declared by the members of a labor union against a dealer in masons’ supplies, who also maintains other branches of his business, is none the less an unjustifiable interference with his business because it is aimed at only one branch of it.</p> <p>In a suit in equity by a dealer in masons’ supplies against the members of a labor union, who are bound by their rules and votes not to use or work upon any material purchased from dealers declared by the union to be "unfair,” to enjoin the defendants from declaring the plaintiff to be “unfair” because he continued to furnish masons’ supplies to a building contractor declared by the union to be “unfair,” where the plaintiff is held to be entitled to an injunction, he also may be awarded damages if it is plain that he has sustained substantial damage, although it may be impossible to determine the total amount of the plaintiff’s loss and it may be difficult to ascertain with absolute certainty the money value of even the damages that are capable of proof.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Presumptions and burden of proof.</p> <p>In an action against a street railway company for personal injuries sustained when driving an automobile, evidence tending to show that, when a street car was being run by employees of the defendant on a down grade on the side of a highway at the rate of from forty to fifty miles an hour and was swaying from side to side, and the automobile of the plaintiff was approaching and was four hundred feet distant, the trolley wheel of the street car left the wire, and the trolley pole after some violent movements up and down was broken off and hurled through the air against a forward wheel of the automobile, causing the automobile to be turned sharply into a bank, that the plaintiff, expecting the automobile to overturn, jumped out and was injured, and that the street car was not stopped until it had gone from two to three hundred feet farther, will warrant a verdict for the plaintiff.</p> <p>The mere fact that, while being used for the purpose for which it was designed, a trolley pole of a street railway car ran off the trolley wire and was broken and thrown against an automobile of a traveller on a highway, causing personal injuries to the driver of the automobile, is evidence that the company operating the car had not used reasonable care to make the apparatus safe, and is to be weighed with evidence, if any, tending to explain the circumstance in a manner which will show that there was no such lack of care.</p> <p>In an action of tort for personal injuries by reason of an accident, the happening of which under the circumstances is in itself evidence that it was caused by negligence of the defendant, the mere fact, that the plaintiff offered evidence to explain the accident and failed in his attempted explanation, does not deprive him of the benefit of the presumption of culpability arising from the doctrine of res ipso loquitur.</p>

<p>Probate Court, Appeal. Equity Pleading and Practice, Appeal.</p> <p>An appeal from a final decree made by a single justice of this court affirming a decree of the Probate Court which has ordered a partial distribution of an estate, where the objections to the decree relate only to matters of fact which cannot be considered because the evidence is not reported, presents no question of law for determination by this court, and must be dismissed.</p>

<p>Information in equity, filed in the Supreme Judicial Court on November 14, 1912, by the Attorney General at the relation of the Treasurer and Receiver General under St. 1909, c. 266, for the collection of an inheritance tax from the administrator of the estate of John E. Skehill, late of Watertown, who died on September 30, 1908.</p> <p>The case was submitted upon the pleadings and an agreed statement of facts to Sheldon, J., who found the facts to be as stated in the agreed statement and, at the request of the parties, reported the case for determination by the full court, with the stipulation that, if the defendant was entitled to prove that the estate of John E. Skehill was less than $1,000, the information was to be dismissed with costs; and that otherwise a decree was to issue as prayed for in the information. On March 30, 1911, the tax commissioner had determined the value of the real estate of the intestate shown by the inventory filed by the defendant to be $2,600, and on that date notified the defendant of such determination. Neither the defendant nor any party interested in the succession applied to the Probate Court under St. 1909, c. 490, Part IV, § 19, for an appraisal of the property of the estate. On September 9, 1912, the tax commissioner certified to the Treasurer and Receiver General the amount of the tax due as $78 and notified the defendant of such certification. It was stated in the agreed statement of facts that the defendant would prove, if the evidence should be received, that the amount of the estate of John E. Skehill at the time of his death was slightly less than $1,000.</p> <p>St. 1909, c. 490, Part IV, § 19, referred to above, is as follows:</p> <p>“Section 19. The value of the property upon which the tax is computed shall be determined by the tax commissioner and notified by him to the person or persons by whom the tax is payable, and such determination shall be final unless the value so determined shall be reduced by proceedings as herein provided. At any time within three months after such determination the Probate Court shall, upon the application of any party interested in the succession, or of the executor, administrator or trustee, appoint one disinterested appraiser or three disinterested appraisers, who, first being sworn, shall appraise such property at its actual market value, as of the day of the death of the decedent and shall make return thereof to said court. Such return, when accepted by said court, shall be final: provided, that any party aggrieved by such appraisal shall have an appeal upon matters of law. . . .”</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries sustained by the plaintiff while in the employ of the defendants, who were the trustees of a voluntary association called the New England Gas and Coke Company, at about 4.30 A. M. on April 20, 1906. Writ dated July 18, 1906.</p> <p>In the Superior Court the case was tried before Fox, J., who at the close of the evidence, which is described in the opinion, ordered a verdict for the defendants. The plaintiff alleged exceptions.</p>

<p>Municipal Corporations, Officers and agents. Banh, Unauthorized official indorsement of deposit. Bills and Notes. Conversion. Estoppel.</p> <p>A town treasurer has no authority by virtue of his office to indorse for transfer or circulation a check payable to the order of the town.</p> <p>A bank, which receives for deposit in the account of one of its depositors a check payable to a town and indorsed by the town treasurer, if it collects the check and treats the proceeds as standing to the credit of its depositor who in no way represents the town, is liable to the drawer of the check for the amount of such proceeds. Following Franklin Savings Bank v. International Trust Co. 215 Mass. 231.</p> <p>A bank, which is sued by the drawer of a check, payable to the order of a town, that was indorsed in blank by a dishonest town treasurer and was collected by the bank, which credited its proceeds to the account of one of its depositors, cannot be heard to contend that delay and negligence on the part of the drawer of the check in asserting his claim has released it from liability, if there is nothing to show that the bank's position is different from what it would have been if the drawer’s action had been brought immediately after the check had been received and collected by the bank and its proceeds had been placed to the credit of the bank’s depositor.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>Although the law does not have a different standard of care for deaf persons than for those whose hearing is normal, yet a very deaf man about to cross a street is required to exercise greater vigilance in the use of his other faculties by reason of his disability.</p> <p>If a man eighty years of age and very deaf, but with his eyesight unimpaired and not suffering from any other disability, starts to cross the street on which he lives, in the centre of which is a single street railway track on which cars run in one direction at intervals of five minutes, and, walking diagonally across the street at a place where there is no cross walk and looking straight ahead of him, is struck by some part of a street railway car, which is running very fast, just before he reaches the nearer rail of the track, and receives injuries from which he dies, these facts indicate a complete absence of care on his part, and there can be no recovery from the corporation operating the railway for causing his suffering and death.</p>

Contract upon an order in writing addressed to the plaintiff and signed by the defendant for an adding machine at the price of $275. Writ in the Municipal Court of the City of Boston, dated January 3, 1913. The declaration contained three counts, of which the plaintiff waived the first and second. The third count alleged that the plaintiff had delivered the machine in accordance with the contract and that the full contract price of $275 was due to it.

<p>Petition, filed on May 23, 1912, for a writ of certiorari to quash the proceedings of the commissioner of public works and the board of street commissioners of the city of Boston relating to the taking of certain parcels of land and flats at Spectacle Island in Boston Harbor belonging to the petitioner for the purpose of providing, for the disposal of the garbage and refuse of the city.</p> <p>The case came on to be heard upon the petition, the answers and certain agreed facts by Morton, J., on December 15, 1913, and, before he resigned on that day, was reserved by him for determination by the full court.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Crosby, J., who, upon the findings of the Industrial Accident Board, which are stated in the opinion, made a decree that the injury arose out of and in the course of the employment of the employee after July 1, 1912, and that the insurer should pay to such employee a weekly compensation of $5.50 from March 27, 1913, to continue during his incapacity for work, but not to exceed a period longer than five hundred weeks from the date of the injury. The insurer appealed.</p>

<p>Negligence, Employer’s liability, Res ipso loquitur. Evidence, Presumptions and burden of proof. Practice, Civil, Amendment before this court. Supreme Judicial Court, Amendment.</p> <p>In an action for personal injuries sustained by the plaintiff while in the employ of the defendant by reason of a revolving shaft, on a machine that the plaintiff had assisted in operating for about five months, catching the end of a roll of cloth that the plaintiff was carrying and drawing in his hand and arm after it, the defendant’s answer consisted of a general denial, and, when the case was brought before this court for the argument of exceptions, the defendant under St. 1913, c. 716, § 3, moved to amend his answer by adding an allegation that the plaintiff’s injuries were received in the ordinary course of his occupation from an obvious danger, the risk of which the plaintiff assumed by entering and continuing in the defendant’s employ. The motion was denied on the ground that the amendment was needless, this defense being open to the defendant under the general issue; because an employer is not bound to change the conditions manifestly existing when a contract of employment is made, and an assertion of this principle is a different thing from an affirmative defense of volenti non fit injuria, where it is necessary for the defendant to allege and prove that the plaintiff knew of the danger to which his injury was due and voluntarily incurred the risk of it.</p> <p>The rule, that the sudden automatic starting into motion of a machine when it ought to be at rest, if unexplained, is in itself evidence of a defect in the machine and of negligence in its maintenance, is not to be extended to a sudden unexplained increase of speed in a machine already in motion, which is operated by means of power transmitted through a system of shafting.</p> <p>In an action for personal injuries sustained by the plaintiff while in the employ of the defendant by reason of a revolving shaft on a machine that the plaintiff was assisting in operating catching the end of a roll of cloth that the plaintiff was carrying and drawing in his hand and arm after it, there was evidence that before the accident the speed of the machine increased to a certain number of revolutions a minute, but there was nothing which would warrant the inference that the increase of speed had anything to do with the occurrence of the accident, and it was held, that, if any negligence of the defendant caused the increase of speed, it was negligence which did no harm to the plaintiff and could not be made the ground for recovery.</p>

<p>Negligence, Employer’s liability, In construction work.</p> <p>At the trial of an action against a contractor for personal injuries suffered by a carpenter in his employ when at work upon a staging used in placing in position forms for concrete for an elevated railway station over a highway, it appeared that a passing street railway car caught a rope and caused a part of the staging which it supported to fall, leaving the plaintiff standing upon a narrow timber, grasping another upright rope for support. There was evidence that, while in this position, one who might have been found to have been exercising the duties of a superintendent for the defendant in the absence of the superintendent, and whose orders the plaintiff was bound to obey, directed the plaintiff to free the rope which had caught on the car, that the plaintiff did so, whereupon the staging, which had been wrenched from its proper position, rebounded and the plaintiff was dislodged. Held, that there was evidence that the plaintiff was in the exercise of due care and that his injury was due to negligence of one who, with the authority and consent of the defendant, was acting as superintendent in the absence of the superintendent.</p> <p>An employee does not assume as a part of his contract of employment the risk of negligence of his employer’s superintendent.</p> <p>In this action by a carpenter against his employer under the employers’ liability act for personal injuries caused by negligence of a foreman in the defendant’s employ, it was held, that on the evidence questions were presented for the jury, whether the defendant’s superintendent was present and whether, if present, he was superintending.</p>

<p>Practice, Civil, Conduct of trial: document produced upon notice. Stockbroker. Sale. Contract, Performance and breach. Damages, In contract.</p> <p>At the trial of an action against a stockbroker involving the question whether, in carrying out sales of certain shares of stock for the plaintiff, the defendant procured memoranda from the purchasers sufficient to satisfy the statute of frauds in force at the place of sale, the defendant, in response to a demand by the plaintiff for “all written confirmations and written contracts of sale of these 1 shares of stock which your sold notes say you sold,” handed to the plaintiff certain documents regarding the purchases signed by the purchasers, and the plaintiff thereupon introduced the documents in evidence without comment as to whether they related to the transactions in question, and the judge, subject to an exception by the defendant, left it to the jury to determine whether the documents referred to the transactions in question. Held, that the exception should be sustained, because the defendant had a right to assume that the plaintiff accepted the documents and put them in evidence on the terms on which they had been called for.</p> <p>Where a stockbroker sells shares of stock for a customer “entirely at your [the customer’s] risk,” or “for your [the customer’s] account and risk,” the risk of the purchaser failing to take and pay for the shares is upon the customer and not upon the stockbroker.</p> <p>If a stockbroker, acting for a customer, in selling shares of stock for the customer’s account and risk to a purchaser who is apparently responsible financially, fails to make with him a valid and enforceable contract of sale, and the purchaser becomes financially irresponsible before the time arrives for the delivery of the stock, the stockbroker is liable to his customer for the damage caused by his failure to make the contract valid and enforceable, and the measure of damages is the portion of his loss which the customer might have collected by way of dividends or otherwise from the estate of the purchaser, and not the whole loss caused by the depreciation in the value of the shares from the amount of the sale price.</p>

<p>Negligence, Railroad, Res ipso loquitur. Actionable Tort.</p> <p>Where, at the trial of an action by a woman against a railroad corporation for personal injuries alleged to have been received by her while a passenger upon a train of the defendant, there is evidence tending to show that without any warning the train had come to a standstill at a place where it was not expected to stop and that the stop was so sudden that the plaintiff, who was sitting “way back” in her seat with her “head on the back,” was thrown forward and moved to the very edge of her seat and, to protect herself, seized her husband, who was sitting beside her, by the arm, that the husband was thrown against the seat in front of him, that passengers who were standing in the aisle were thrown against the front door, and that because of the shaking up she received the plaintiff suffered a miscarriage the next night, a finding is warranted that the shaking up which the plaintiff received was not of the kind incident to ordinary travel on a steam railroad, and that her injuries were caused by negligence of the defendant.</p> <p>Where, at the trial of an action by a woman against a railroad corporation for personal injuries, there is evidence tending to show that when the plaintiff was a passenger on a train of the defendant the train stopped so suddenly that she received a shaking up of a kind not incident to ordinary travel on a steam railroad, and shortly afterwards felt pain, that she saw a physician the next day and that night suffered a miscarriage, and the physician testifies that “the accident . . . was the cause for the miscarriage. First, the shaking up, and second, the nervous shock,” a finding is warranted that, due to the shaking up, the plaintiff received an internal physical injury which, coupled with the nervous shock, caused the miscarriage, and that an actionable tort was committed by the defendant.</p>

<p>Contract on two joint and several promissory notes given by the defendants, who were husband and wife, to the plaintiff, both dated November 20,1911, and payable to the plaintiff on demand, with interest at six per cent per annum, the first note being for $1,000 and the second for $500. Writ dated February 7, 1912.</p> <p>The defendants’ original answer contained a general denial and an allegation of payment, also a denial of the genuineness of the signatures. An amended answer set up the defense of false and fraudulent representations and fraudulent concealment on the part of the plaintiff.</p> <p>In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. The defendant Fred F. Squire was the treasurer of the F. F. Squire Company, a corporation, of which the defendant Ida F. Squire was the principal stockholder. The defense set up of fraudulent representation and concealment on the part of the plaintiff, which was the only defense relied upon, was based on the following facts: In June, 1911, the plaintiff became interested in or organized the Jackson-Parker Company, a corporation which was engaged in a business similar to that of the F. F. Squire Company and had a place of business near the stands of the F. F. Squire Company; that the plaintiff hired one Jackson who was in the employ of the F. F. Squire Company to leave the employ of the F. F. Squire Company and to go to the Jackson-Parker Company; that the plaintiff and Jackson took a considerable portion of the trade of the F. F. Squire Company to the Jackson-Parker Company, thereby causing a serious financial embarrassment to the F. F. Squire Company and otherwise operated to the detriment of the F. F. Squire Company. The defendant Fred F. Squire testified that in June, 1911, he had a conversation with the plaintiff with reference to the Jackson-Parker Company, saying that he had heard that he had an interest in that company and asked him whether he was interested in the company, and the plaintiff said that he was not. This was the only evidence of any conversation or representation of the plaintiff with regard to his interest or denial of interest in the Jackson-Parker Company. The defendants had no knowledge of the plaintiff’s interest in the Jackson-Parker Company or of his acts in connection with it. At the close of the evidence the plaintiff asked the judge to make the following rulings:</p> <p>“1. On all the evidence it does not appear that there were any false representations made to the defendant Ida I. Squire, and a verdict should be ordered for the plaintiff against her.</p> <p>“2. On all the evidence it does not appear that any false representations were made to the defendant Ida I. Squire or that she was induced to sign the note sued on by reason of any false representations made to her by the plaintiff, and therefore a verdict should be rendered for the plaintiff against the defendant Ida I. Squire.</p> <p>“3. On all the evidence it does not appear that the defendant Ida I. Squire relied upon any representations of the plaintiff and was thereby induced to sign said note, and, therefore, a verdict should be rendered for the plaintiff as against the defendant Ida I. Squire.</p> <p>“4. On all the evidence, a verdict should be rendered for the plaintiff.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury, who returned a verdict for the defendants. The plaintiff alleged exceptions.</p>

<p>Evidence, Competency, Admissions and confessions.</p> <p>In an action by a corporation, having its place of business in Boston, against a former salesman to recover certain amounts of money paid to him as “travelling expenses,” where the plaintiff contends that certain advances made to the defendant for travelling expenses were to be accounted for by him, while the defendant contends that he was entitled to retain these amounts as additional compensation for travelling besides his commissions, the plaintiff may show that the defendant received money for travelling expenses which he did not use in travelling, and for that purpose the plaintiff’s treasurer may be allowed to testify that he paid the defendant money for travelling expenses for a certain trip, that afterwards he saw the defendant at Boston when he should have been on the trip, and that later he had a conversation with the defendant, in which the defendant at first said that he was in Bridgeport on the day in question, and, when the witness told him that he had seen him in Boston, admitted that he was not in Bridgeport on that day but was in Boston attending to some business of his own.</p> <p>Where an admission made by a party to an action is put in evidence, the conversation in which the admission occurred also is admissible to show the circumstances under which the admission was made as bearing upon the weight to be attached to it.</p>

<p>Tort for personal injuries suffered when the plaintiff, while she was waiting upon the platform of the Boylston Street subway station in Boston for an elevated train then passing through the subway, was pushed from her feet by the crowd and forced into an open space between the platform and the train. Writ dated July 3, 1907.</p> <p>In the Superior Court the case was tried before Wait, J. Material facts shown by the evidence are stated in the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant and reported the case with the,following stipulation: “If my ruling is wrong a verdict shall be entered for the plaintiff Collins in such an amount as may be determined upon by the arbitration of Doctors W. A. Brooks, Jr., and J. J. Thomas. If they are unable to agree they shall call in as a third arbitrator Dr. E. W. Taylor and the award of any two of them shall be final.”</p>

<p>Petition, filed on April 15, 1912, for a writ of certiorari to quash the proceedings of the tax collector, mayor and board of aldermen of Brockton in regard to the assessment and collection of a sewer assessment on a parcel of land on Grove Street in that city owned on June 1, 1893, when the order for the construction of such sewer was passed, by one Abby Farrar, the assessment having been made under R L. c. 50 and the Revised Ordinances of the City of Brockton c. 28, § 3, on March 22, 1910, when the land belonged to the petitioner and other persons. The ordinance referred to was based on R. L. c. 49, § 5.</p> <p>The case came on to be heard by Morton, J., who, by agreement of the parties, reserved it upon the pleadings and an agreed statement of facts for determination by the full court.</p>

Tort by a longshoreman for personal injuries sustained on March 30, 1909, when in the employ of the defendant, who was a stevedore at Boston, by reason of the unclutching of a winch on the steamer Frances, in the hold of which the plaintiff was working as she was being unloaded at the Mystic Docks in the part of Boston called Charlestown. The declaration contained four counts.

<p>License. Intoxicating Liquors. Statute. Mandamus. Words, "Shall.”</p> <p>Under St. 1906, c. 421, § 2, as amended by St. 1911, c. 423, providing that “the mayor and aldermen in cities and the selectmen in towns in which said licenses [for the sale of intoxicating liquors] of the first five classes are not granted shall annually in the month of April, grant and issue one or more permits [for the transportation of intoxicating liquors] to become effective on the first day of May following, and to be granted only to a person, firm or corporation regularly and lawfully conducting a general express business,” it is the duty of the mayor and aldermen of such a city annually to undertake the investigation of applications for such permits and to grant at least one such permit if an applicant is found who regularly and lawfully is conducting a general express business and whose character is such that he can be trusted to attempt to comply honestly with the terms of the statute.</p> <p>In considering a contention that the word “shall” as used in a certain statute should have merely a permissive meaning, it is proper for this court to consider the fact, that when the passage of the statute was under discussion in the House of Representatives a motion to substitute the word “may” for the word “shall” was lost.</p> <p>A writ of mandamus, when it is addressed to a board of public officers charged with a duty that requires the exercise of judgment, does not prescribe the particular action to be taken but merely sets the board in motion to exercise fairly and reasonably the duty imposed upon them by statute.</p>

<p>Complaint, received and sworn to on January 2, 1912, in the Police Court of Lowell, charging that the defendant sold to one Frank X. Dostaller “a certain article of food, to wit: syrup, said syrup so sold as aforesaid being then and there adulterated at the time of said sale within the meaning of” R. L. c. 75, § 18.</p> <p>On appeal to the Superior Court, the case was tried before Chase, J., upon an agreed statement of facts which was substantially as follows:</p> <p>On December 18, 1911, Frank X. Dostaller ordered from the defendant and shortly thereafter received three cases of “Golden Tree” syrup of different sizes. The label of each bottle of syrup set forth substantially the name, the legend in a trademark, "Golden Tree Best Quality,” the words “Registered under Food & Drugs Act,” and the statement, “Made from Granulated and Maple Sugars,” with pictures of a maple tree and of sugar cane.</p> <p>The Golden Tree syrup is a blend prepared- by mixing maple sugar with water to produce a syrup, and then adding to it granulated sugar. The ingredients are well known articles of food, wholesome, and not injurious to health, and no artificial coloring is used. The blend itself is not deleterious nor injurious to health.</p> <p>The color of pure sap syrup or pure maple sugar syrup varies from a very dark brown to an amber, the color of Golden Tree syrup. The taste varies from a sweet, pleasant one like Golden Tree syrup to a strong, displeasing one. Both syrups have the same consistency.</p> <p>The retail price of the same quantity of pure sap syrup is double that of the Golden Tree syrup. The addition of the granulated cane sugar to the Golden Tree syrup tends to preserve the maple sugar syrup of the compound. The granulated cane sugar constitutes approximately two thirds of the compound.</p> <p>The judge refused to order a verdict for the defendant and the jury returned a verdict of guilty.</p> <p>At the request of the defendant the judge reported the case for determination by this court, the verdict to stand if the refusal to order a verdict of not guilty was correct; and the verdict to be set aside and a verdict of not guilty to be ordered if the trial judge should have ordered such a verdict.</p>

<p>Contract or tort against John Dixwell and Heber Bishop, who were alleged in the amended declaration to have signed with the name, "New England Home for Deaf Mutes, Aged, Blind or Infirm, by John Dixwell, M. D. President and Heber Bishop, Treasurer,” a negotiable promissory note for $2,000, payable .to William F. Mitchell or order and purporting to be secured by a mortgage on real estate. Writ dated September 9, 1911.</p> <p>It also was alleged in the amended declaration that the New England Home for Deaf Mutes, Aged, Blind or Infirm was a corporation, that the defendants had no authority to sign the note in its name, and knew that they had no such authority, that the plaintiff purchased the note and became an indorser thereof and a holder for value in due course relying upon the defendants’ representations of authority, and that the corporation had refused to pay it.</p> <p>The defendants severally demurred to the declaration. The demurrers were heard by Crosby, J., who sustained them and reported the case for determination by this court, judgment to be entered for the defendants if the demurrers were sustained properly; otherwise, the demurrers to be overruled and the case to stand for trial.</p>

<p>Trust, Personal liability of trustee. Guaranty. Contract, What constitutes.</p> <p>If one who is a trustee signs a contract in writing and adds after his name the words, “as Trustee,” he is bound by the contract personally unless he stipulates, otherwise than by such a signature, that he intends to be bound only as a trustee.</p> <p>If one of the shareholders of a real estate trust, who personally owes $4,840 under the terms of a lease of land, his interest in which, after the lease had been executed, he had conveyed to the trustee to become a part of the real estate trust, makes an agreement in writing with the lessor providing that the lease shall be cancelled, and that, upon payment by the lessee to the lessor of $2,500 on or before a certain date, the lessor’s claim against him shall be discharged, but that, if the payment is not so made, the full sum of $4,840 shall be due and payable to the lessor, and the trustee of the real estate trust makes the following , indorsement upon the agreement, “I hereby guarantee the payment of money specifically set forth in the above instrument,” and signs it with his own name “as Trustee” of the real estate trust, and thereafter the lesseé fails to pay the $2,500 on the date specified, the trustee is liable personally for the full sum of $4,840.</p>

<p>Bills and Notes, Liability of drawer of check after stopping payment of it. Bank.</p> <p>A check upon a bank, given for a good consideration, was indorsed in blank by the payee, who was a holder in due course, and was presented to the bank upon which it was drawn through the Boston clearing house. There were funds of the drawer in the bank to pay the check. The drawer had given to the bank a notice not to pay the check which was overlooked by the paying teller, who failed to return the check to the bank from which it came within the time allowed by the clearing house rule for such return, and the amount of the check was paid to the payee by the bank which had presented it through the clearing house to the bank upon which it was drawn, and was charged temporarily to the drawer’s account with the bank upon which it was drawn. Later the error was rectified by the bank upon which the check was drawn making a corresponding credit to the drawer’s account. The check remained with the bank. The drawer afterwards withdrew all his funds from that bank. The paying teller, who was responsible to that bank for his error, took an assignment of all the bank’s right, title or interest in and to the check “or the funds evidenced thereby or the amount paid thereon,” and brought an action upon the check against the drawer. Held, that the drawer’s order to stop payment of the check did not affect his liability on it to the plaintiff, who had succeeded to the rights of the payee.</p>

Bill in equity, filed in the Superior Court on February 14, 1913, and afterwards amended, by the trustee in bankruptcy of Walter S. Gallagher against the Mutual Life Insurance Company of New York and Mabel H. Gallagher, wife of the bankrupt, seeking to establish the right of the plaintiff to the proceeds of an endowment life insurance policy upon the life of the bankrupt, who had died, and to enjoin the wife from asserting any right to such proceeds under the assignment…

<p> Malicious Prosecution. </p> <p>Although under R. L. c. 217, § 1, the finding of a court or justice authorized to issue warrants in criminal cases, that there is reasonable and probable cause for the belief of a complainant that stolen articles are concealed in a particular house or place, is conclusive so far as respects the validity of a search warrant issued upon such finding, it is not conclusive against the accused person in an action for malicious prosecution brought by him against such complainant, and it is open to him to show that the complainant acted in bad faith.</p> <p>In an action for malicious prosecution in procuring a search warrant under which the plaintiff’s house was searched and he was arrested, it appeared that the articles described in the search warrant as stolen were “divers silversmith’s tools, all of the value of $10,” that in the search of the plaintiff’s house under the warrant one silversmith’s tool was found and that the officer also found certain other articles which were not named in the warrant, that on the same day the defendant made a complaint charging the plaintiff with the larceny of certain of these articles “all of the value of $10,” but not including the silversmith’s tool, although the defendant testified that when he signed the complaint he supposed that it was included. Later upon a hearing on the search warrant the silversmith’s tool “was ordered to be returned to [the defendant] its owner.” Held, that the evidence justified a finding that the search warrant proceedings were terminated in favor of the plaintiff, thereby furnishing a foundation for the action for malicious prosecution.</p>

<p>jEvidence, Presumptions and burden of proof, Explanation of non-production of books of account, Competency. Wagering Contracts. Practice, Civil, Auditor’s report, Exceptions. Damages, In contract.</p> <p>In an action under R. L. c. 99, § 4, for the value of securities alleged to have been delivered as margins on wagering contracts, where it appeared that orders were given to sell stocks which the customer did not own, but an auditor made a report in the defendant’s favor, the defendant contended that the prima facie evidence by virtue of § 6 of the statute, that there was an intention that there should be no actual purchase or sale and that there was reasonable cause to believe that such intention existed, was rebutted by the auditor’s report, which by R. L. c. 165, §§ 55, 56, also was made prima facie evidence, and that in the absence of other evidence of such intent the plaintiff could not be found to have sustained the burden of proving these essential facts. Held, that, as these statutes contained no provision in regard to the equality or the comparative weight of the presumptions of fact created by them, it was for the jury to determine the evidential value of the conflicting presumptions in the light of all the circumstances disclosed by the evidence. In the present case there was oral evidence, contra-dieting a statement in the auditor’s report that could have been found to be material, which would have warranted a finding for the plaintiff.</p> <p>After the defendant in an action of contract has asked for a ruling restricting the damages to a certain portion of the plaintiff’s claim, and has excepted to the refusal of the presiding judge to make this ruling, an agreement made by the defendant’s counsel as to the amount of damages that the plaintiff, if he obtains a verdict, is entitled to recover under the ruling of the judge, does not waive the defendant’s exception or deprive the defendant of his right, if his exception is sustained, to have a different rule of damages applied which will reduce the amount that can be recovered to a sum far below the sum agreed upon.</p> <p>In an action under R. L. c. 99, § 4, for the value of securities alleged to have been delivered as margins on wagering contracts, where it appears that the securities belonging to the plaintiff were pledged lawfully to other persons so that he could not deliver them to the defendant, and that the defendant redeemed the. securities from the pledges, thus acquiring a valid lien upon the securities to the extent of the amount of money thus paid by him, and that the securities after-wards were lost in the wagering transactions complained of, the plaintiff is not entitled to recover the full value of the securities, but only the net amount of money received by the defendant from their sale after the discharge of the indebtedness which they had been pledged to secure.</p> <p>At the trial of an action under R. L. c. 99, § 4, for the value of securities alleged to have been delivered as margins on wagering contracts, where the plaintiff gave the defendant notice to produce his books relating to the transactions in question and the defendant failed to produce them, whereupon the plaintiff put in evidence copies of the material accounts previously furnished by the defendant, the defendant, for the purpose of explaining his non-production of the books and thus rebutting any inference that otherwise might be drawn from their non-production, should be allowed to show, that at a previous hearing in the case before an auditor whose report was in evidence it was agreed by the parties that transcripts of the material portions of the books should be used after ample opportunity had been given to the plaintiff for verification and that this course had been followed at that hearing, so .that the defendant reasonably might have assumed that the notice to produce the books at the trial in court was given merely for the purpose of making the copies admissible as secondary evidence.</p> <p>In an action under R. L. c. 99, §§ 4, 6, 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, upon the cross-examination of the plaintiff it is proper for the presiding judge to refuse to allow the defendant to ask him as to his knowledge of the losses of his testatrix and of the profits of the defendant in the transactions in question, these being immaterial facts on which the plaintiff’s right to recover in no way depends.</p> <p>In an action under R. L. c. 99, §§ 4, 6, 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, although it is competent for the plaintiff to show that at the beginning of the relations of the plaintiff’s testatrix with the defendant she deposited with him all the securities she had and that at the end of those relations she had no securities, yet the plaintiff should not be allowed to testify, against the defendant’s objection, that his testatrix told him that “she had lost all her property, all her money and securities, in stock speculation.” In the present case, although such evidence was admitted erroneously, an exception by the defendant to its admission was not sustained, because it appeared that testimony to the same effect had been admitted earlier in the trial without objection, so that the statement objected to was already in' evidence and the defendant was not harmed by its second admission.</p>

<p> Boundary. Flats. </p> <p>The description in a deed of a boundary of “a tract of land and flats,” after giving a boundary on a certain street, was as follows: “Then turns and runs North Easterly bounding on my adjoining land and flats, this line running parallel with the dividing line between land of K, formerly the W lot, and my adjoining land to Mystic River.” The “ dividing line” referred to was a fixed and definite straight line. Held, that the line described was necessarily a straight line from the street named across the upland and flats to low water mark.</p>

<p>Bills and Notes, Holder for value. Negotiable Instruments Act. Words, “Immediate parties,” “Negotiated,” "Negotiation,” “Holder.”</p> <p>If the payee of a promissory note is the holder of the note in due course, he is not one of the “immediate parties” to it within the meaning of R. L. c. 73, § 33. Under the provisions of the negotiable instruments act contained in R. L. c. 73, §§ 31, 33, 69, if the payee named in a promissory note purchases it in complete form for value before maturity in good faith and without notice of any infirmity in title or otherwise, he is a person to whom it has been negotiated as the holder in due course; and he may recover on the note against an accommodation indorser, although, when such indorser signed the note, the amount was left blank and he indorsed it upon the agreement that it should not be delivered to the payee until it was indorsed also by another person ■ and that the amount to be filled in should not exceed a certain sum, and both of these conditions were violated.</p>

<p>Workmen’s Compensation Act. Words, "With whom she lives.”</p> <p>A woman, who by friendly agreement with her husband lived in Nova Scotia where she supported herself and their young child while her husband lived and worked in Boston, cannot be found to have been living with her husband at the time of his death within the meaning of St. 1911, c. 751, Part II, § 7 (a), which provides that the wife of a deceased employee "shall be conclusively presumed to be wholly dependent for support . . . upon a husband with whom she lives at the time of his death,” and, in order to entitle such a widow to receive payments under the workmen’s compensation act, she must prove her “dependency, in whole or in part, ... in accordance with the fact, as the fact may be at the time of the injury.”</p>

Contract for a balance of $1,138.80 alleged to be due to the plaintiff for ironwork done on the Brimmer School, in Boston, a part of the claim being for a balance of the contract price, alleged to be due, and a part for extras furnished. Writ dated April 4, 1910.

<p>Statute, Construction. Corporation, Officers and agents: criminal liability for conversion. Evidence, Presumptions and burden of proof, Of intent, Relevancy and materiality. Practice, Criminal, Exceptions, Conduct of trial: judge’s charge, Arrest of judgment, Verdict. Words, “Appropriate.”</p> <p>Proceedings in the Senate preliminary to the passage of St. 1878, c. 274, now R. L. c. 208, § 62, here were referred to as confirming the interpretation of the statute adopted by this court, and cases were cited as to the propriety of referring to such legislative history to throw light upon a doubtful statute.</p> <p>At the trial of an indictment under R. L. c. 208, § 62, charging that the defendant, who was the president and a director of certain mining corporations doing business in this Commonwealth, “did fraudulently appropriate and convert to his own use” certain sums of money of the corporations, it is not necessary to prove that, previous to the alleged misappropriation, the defendant had possession of the money. It is enough to prove that he appropriated or converted it by fraudulent means.</p> <p>Section 62 of R. L. c. 208 is intended to prohibit breaches of trust by which faithless corporate officers or agents appropriate the corporation’s property to their own use, and is not confined in its scope to a prohibition of the crime of embezzlement.</p> <p>At the trial of an indictment for a violation of R. L. c. 208, § 62, in that the defendant “did fraudulently appropriate and convert to his own use” certain specific sums of money belonging to certain corporations of which he was president and a director, there was evidence tending to show the following facts: The defendant was the dominating person in all the corporations, which were foreign mining corporations not producing ore and which were doing business in this Commonwealth, and his directions to the treasurer always were followed at once. The defendant organized some of the corporations, subscribed for almost all of their capital stock, paid therefor with his personal notes and made returns to the State officers of the State of the corporations’ domicil that the stock was paid for in cash. At various times the treasurer, by order of the defendant, without the knowledge of the stockholders or directors of the corporations concerned and, as the defendant knew, contrary to the by-laws of such corporations and the laws of the State of their domicil, paid to the defendant funds of the various corporations in return for the defendant’s unsecured personal notes. The sums so paid amounted in all to over $1,000,000. The corporations had procured these amounts either by their notes being discounted at banks or trust companies, or from assessments upon the holders of the capital stock represented in the call to be for development purposes. The defendant then signed several statements to the effect that the amounts which in fact were represented by his unsecured notes were cash in the treasuries of the corporations. While $250,000 of the amounts thus taken by the defendant from the corporations were unpaid, the defendant went into bankruptcy. Held, that a verdict of guilty was warranted.</p> <p>At such trial, where the defendant’s acts were equivocal in their nature and might be criminal or honest according to the intent with which they were done, it was held that the Commonwealth properly was permitted to show that, by means of a like plot and design and in furtherance and as part of a common scheme, the defendant fraudulently procured funds from another mining corporation, which was not mentioned in the indictment.</p> <p>And, it appearing that at such trial the treasurer of the corporations, called as a witness by the Commonwealth, was asked in cross-examination whether he thought the defendant perfectly responsible financially, and that the question was excluded subject to an exception by the defendant, and it also appearing that the same inquiry had been answered earlier by the witness, it was held that the exception must be overruled because the defendant had suffered no harm.</p> <p>Evidence admitted at such trial tending to show that the defendant applied for a listing of the stocks of the corporations on certain stock exchanges and, in connection with such applications, submitted false statements in writing as to the condition of the corporations’ treasuries, was held to have been admitted properly as tending to show a part of a general fraudulent plan of the defendant and as bearing on the question of his intent.</p> <p>As further bearing on the questions of the defendant’s intent and the motive for his acts, it was held that the trial judge rightly admitted in evidence annual reports of the corporations to the officers of the State of their domicil, containing false statements as to their condition and signed by the defendant; annual reports to the stockholders, prepared under the defendant’s directions, containing statements tending to deceive the readers into thinking that there were large sums of cash in the corporations’ treasuries instead of personal unsecured notes of the defendant; notices calling for assessments on the stock for development of the mines, the money thus procured being paid to the defendant on his unsecured personal notes; the procuring from banks, on discounted notes of the corporations, of money afterwards paid to the defendant on his unsecured personal notes; a conversation of the defendant with a reporter of a financial newspaper wherein the defendant falsely stated, in reply to an inquiry as to whether the corporations’ stocks were under pressure, that there was ample cash in their treasuries; an advertisement in a newspaper, disguised as news, containing like false statements; evidence of the defendant’s financial embarrassment, and evidence of great extravagance in his living expenses.</p> <p>A judge of the Superior Court has no power to allow exceptions, properly saved at the trial of a criminal case but not included in a bill of exceptions which was filed and notice of which was given in accordance with the requirements of R. L. c. 219, § 35, although such exceptions are included in an amended bill presented after the time allowed by the statute.</p> <p>At the trial of an indictment charging in several counts violations of R. L. c. 208, § 62, in that the defendant, while the president and a director of certain corporations, “did fraudulently appropriate and convert to his own use” money of the corporations, the presiding judge read copious extracts from the opinion of this court in Commonwealth v. Tuclcerman, 10 Gray, 173, concluding with the statement, “Those statements, so far as they apply to the evidence in this case, I give you as the law in this case,” and, on exceptions by the defendant, this court, after an examination of the judge’s charge, held, that the charge was not objectionable on the ground that so many of the facts were read from the case quoted as to prejudice the jury.</p> <p>Where an indictment contains several counts, which, read in connection with specifications filed by the Commonwealth, charge that the defendant, in doing certain acts, committed the crime described in R. L. c. 208, § 62, relating to misappropriation by an officer, agent, clerk or servant of a corporation doing business in this Commonwealth of property of the corporation, and also other counts charging that in doing the same acts the defendant committed the crime described in § 26 of the same chapter, which includes in its description the crimes formerly described as larceny, embezzlement and obtaining property by false pretenses, and verdicts of guilty are returned as to the counts charging the crime described in § 62, and of not guilty as to those counts charging the crime described in § 26, a motion in arrest of judgment on the ground that the verdicts are inconsistent should not be sustained, because the crime described in § 62 is a different offense from that charged in § 26.</p>

<p>Contract by a real estate broker for a commission for procuring a purchaser for certain real estate of the defendant, the declaration being in two counts, the first alleging an agreement .by the defendant to pay the plaintiff $500 for the services, and the second as amended being upon an account annexed for the same amount. Writ in the Municipal Court of the City of Boston dated May 24, 1913.</p> <p>In the municipal court the case was heard by Wentworth, J., upon an agreed statement of facts. Besides those stated in the opinion, the facts agreed upon were in substance as follows:</p> <p>The defendant employed the plaintiff, a real estate broker having an office in Boston, to sell for him land and buildings numbered 2 and 6 on Cambridge Street in Boston. The plaintiff procured one Jeremiah Green as a purchaser and on January 7,1913, Green and the defendant made an agreement in writing for the sale and conveyance of the real estate to Green “by a good and sufficient deed . . . conveying a good and clear title . . . free from all encumbrances, except a mortgage for $50,000 . . . also subject to a lease which has about four years to run,” Green agreeing to pay $10,000, of which $500 was paid at the time of the delivery of the agreement, $4,500 was to be paid in cash upon the delivery of the deed, and the remainder was to be paid by Green’s note secured by a mortgage on the property.</p> <p>Simultaneously with the execution and delivery of the agreement between the defendant and Green, the plaintiff and the defendant executed and delivered the agreement set out in the opinion.</p> <p>Green was able and willing to carry out his agreement to purchase, but the defendant was unable to carry out that agreement because of certain incumbrances on the premises, which he failed to have removed. Neither the plaintiff nor the defendant had any actual knowledge of the incumbrances when they made their agreement.</p> <p>The trial judge found for the plaintiff in the sum of $511.90, and at the defendant’s request reported the case to the Appellate Division. The Appellate Division ordered that the report be dismissed; and the defendant appealed.</p>

<p>Two actions of tort, the first by a married woman (hereafter called the plaintiff) for personal injuries sustained, as she was alighting from a street railway car of the defendant on TTnrit.ingt.oTi Avenue near the corner of Greenleaf Street in Boston, by reason of her stepping into a depression in a space reserved for the défendant’s cars by authority of St. 1894, c. 324; and the second action by her husband for consequential damages. Writs dated May 3, 1912.</p> <p>Interrogatories were propounded to the plaintiff, many of which, as stated in the opinion, sought to require her to disclose the manner in which she proposed to prove her own case. The plaintiff at first refused to answer such of the interrogatories, but, on motion of the defendant, she was ordered to answer them by Hardy, J., who allowed a bill of exceptions to such order.</p> <p>The cases afterwards were tried before Wait, J. The evidence material to the decision is described in the opinion. The interrogatories which, with the answers to them, were referred to by the counsel for the defendant ih cross-examination of the plaintiff, as stated in the opinion, were as follows: “Describe fully how the alleged accident happened; state what you were doing, and what happened to you, in the order in which such events took place;” and “Please specify in what respect the place where you alighted was unsafe and dangerous as alleged in your declaration.”</p> <p>At the close of the plaintiffs’ evidence, the trial judge ordered verdicts for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Contract, against the executor of the will of Edward Gerrish, late of Cambridge, for $10,000, the declaration containing three counts as follows:</p> <p>“Count 1. And the plaintiff says that on or about the 23d day of January, 1901, the defendant’s testator, Edward Gerrish, made a promise to Joseph A. Gardner, father, and agent of, and acting for the plaintiff, that if the plaintiff, who was then an infant, should receive and bear the name of ‘Edward Gerrish,’ after the name of the said testator, he, the said Gerrish, now deceased, would pay over and deliver to the plaintiff the sum of ten thousand ($10,000.) dollars; that the plaintiff did receive and bear, and has always since borne said name of ‘Edward Gerrish/ to wit: Edward Gerrish Gardner. Wherefore the defendant owes the i plaintiff the sum of ten thousand ($10,000.) dollars with interest since said date.</p> <p>‘‘Count 2. And the plaintiff says that the defendant’s testator made with him, through his father and agent, a contract in writing, a copy of which is hereto annexed marked ‘A,’ and the defendant owes the plaintiff ten thousand ($10,000.) dollars with interest since the date of said written instrument.</p> <p>“Count 3. And the plaintiff says that the defendant’s testator promised him, through his father and agent, acting for him, that he would see that he never wanted for anything and would do handsomely by him and give him a good education if he would receive and bear the name of Edward Gerrish, after the name of the defendant’s testator; and the plaintiff did receive and bear and has always since borne the name of Edward Gerrish, to wit, — Edward Gerrish Gardner. Wherefore the defendant owes the plaintiff ten thousand ($10,000.) dollars.”</p> <p>The alleged contract marked “A,” referred to in the second count, was signed by Edward Gerrish and with the exception of that signature is quoted in full in the opinion.</p> <p>In the Superior Court the case was tried before Hall, J., who at the close of the plaintiff’s evidence, which is described in the opinion, ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Three actions of tort for personal injuries sustained on Jan- • uary 22,1908, from a collision with a street railway car owned and operated by the defendant when the plaintiffs were travelling in an automobile owned and driven by the plaintiff Charles R. Dean at the intersection of Brookline Avenue and the Riverway parkway in Boston. Writs dated June 1, 1908.</p> <p>The defendant’s amended answer in each of the cases contained a general denial and an allegation that at the time of the injury the plaintiff was unlawfully on the highway because the automobile in which the plaintiff was travelling was not registered in accordance with St. 1903, c. 473, as amended by St. 1905, c. 311, St. 1906, c. 412, and St. 1907, c. 580.</p> <p>In the Superior Court the cases were tried together before Bell, J., who ruled that the plaintiffs were not entitled to recover and ordered a verdict for the defendant in each of the cases. By consent of the parties the judge reported the cases for determination by this court.</p>

<p>Tort by an administratrix against the owner of an automobile for causing the death of the plaintiff’s intestate by a collision with another automobile in which the plaintiff’s intestate was traveling. Writ dated August 25, 1913.</p> <p>The defendant filed a plea in abatement, alleging want of jurisdiction for the reason that there had been no service of process upon the defendant, whose residence was at Providence in the State of Rhode Island, the only attempted service of the writ having been made upon the defendant in the court house at Attleborough where he was attending as a party and a witness the trial in the Fourth District Court of Bristol of three actions of tort, in one of which he was a plaintiff and in the other two a defendant.</p> <p>The plaintiff filed an answer to the plea in abatement, and also a demurrer to it, assigning as the cause of demurrer that the facts alleged did not constitute a ground for the abatement of the plaintiff’s writ.</p> <p>The case was heard upon the plea in abatement by Dubuque, J., who found the facts to be as stated in that plea, and made an order sustaining the plea. Being of opinion that the order made by him ought to be determined by this court before any further proceedings in the trial court, he reported the case under St. 1910, c. 555, § 5, for determination by this court of the question raised by the plea in abatement. If upon the facts reported no proper service was made upon the defendant, the plea was to be sustained and the plaintiff’s writ was to be abated. If the service was proper and conferred jurisdiction upon the Superior Court, the defendant was to be given leave to answer and the case was to stand for trial, or such other order was to be made as this court might deem proper.</p>

<p>Practice, Civil, Rescript of this court, New trial. Supreme Judicial Court. Superior Court.</p> <p>Where, on exceptions to the rulings of a judge of the Superior Court made at the trial of two issues on an appeal from the Land Court, this court issues a rescript containing the unqualified order “Exceptions sustained,” this means that there shall be a new trial upon both the issues, although it is held by this court in the opinion accompanying the rescript that there was error only in the trial of one of the issues; and at the new trial the presiding judge has no power to confine such trial to the issue in regard to which the error was committed.</p>

<p>Contbact by F. W. Stock and Sons, a corporation organized under the laws of Minnesota and engaged in business as a dealer in flour, against Joseph P. Dellapenna, a baker in Lynn, for the refusal of the defendant to accept and pay for two carloads of flour ordered from and shipped by the plaintiff, the writ being dated July 11, 1911; and</p> <p>Tort by the defendant in the first case against the plaintiff in that case for alleged unlawful arrest and malicious prosecution, the writ being dated December 28, 1911.</p> <p>In the Superior Court the cases were tried together before Keating, J. It was stated in the bill of exceptions that “the testimony of the two parties was diametrically opposed.” The evidence, so far as it is material for understanding the exceptions, is described in the opinion.</p> <p>The trial resulted in a verdict for the corporation and against Dellapenna in each of the cases, in the action of contract a verdict being returned for the plaintiff in the sum of $300, and in the action of tort a verdict being returned for the defendant. During the trial the judge admitted, against the objection and subject to the exception of the defendant Dellapenna, the testimony of several persons as to the reputation of Dellapenna for veracity. Dellapenna objected to all of these witnesses on the ground that they did not qualify as having sufficient knowledge of his reputation to testify to it, and also excepted to their testimony as inadmissible, and asked that it should be struck out.</p> <p>. One Leviston, a flour salesman, called as a witness by the plaintiff in the first case, testified that he knew the reputation of Dellapenna for truth and veracity among people in the flour tradé, that he had talked with more than two or three flour dealers about it and that his knowledge of Dellapenna’s reputation was derived from these two ór three flour' dealers and his own experience. Later the' witness testified that he knew Dellapenna’s general reputation for truth and veracity and that his knowledge of it came to him because he was connected with the flour trade as a seller of flour.' The judge rifled that he would admit the evidence, the weight of it being for the jury. The witness then was asked what Dellapenna’s general reputation was for truth arid veracity, .and answered, “It is poor.”</p> <p>One Pritchard, another flour salesman, who also was called as a witness by the plaintiff in the first case, testified that he knew Dellapenna’s reputation for truth and veracity only “among the flour trade . . . only through several flour dealers, that is all — salesmen.” To the question, “What is his general reputation for truth and veracity?” he answered, “Poor amongst the flour trade.”</p> <p>One Hermann, who had been a travelling salesman in the flour business, testified that he knew Dellapenna from reputation although he never had had any personal dealings with him. He testified that his general reputation for truth and veracity was “very poor,” and said, as to his sources of information, that he knew nothing more than what he had “gained from.other sources, from people connected, that is all in the flour business.”</p> <p>One Rosenberg, who also had been engaged in the flour business, testified that Dellapenna’s reputation in the community for truth and veracity was bad, and that he had heard about him outside the flour trade from Italians who lived in Lynn.</p> <p>Dellapenna excepted to the admission of all the evidence described above.</p> <p>In the first action the jury returned a verdict for the plaintiff against Dellapenna in thé sum of $300. In the second action the jury returned a verdict for the defendant corporation. Dellapenna alleged exceptions in both cases.</p>

<p>Contract for an alleged breach of a liquor license bond executed, in accordance with the provisions of R. L. c. 100, § 42, by Frank Marotta and Edward Tedeschi, doing business as Marotta and Tedeschi at 89 State Street in Boston, as principals, and by the defendant as surety. Writ in the Municipal Court of the City of Boston dated July 23, 1913.</p> <p>The breach of the bond alleged in the declaration was that Marotta and Tedeschi permitted disorder on the premises described on or about September 9, 1910, when the bond was in force, in that “Marotta allowed, permitted and caused disorder on said premises and assaulted” one Silva, for whose benefit this action was brought, and Silva brought an action against Marotta in the Superior Court for the county of Middlesex for the assault and on January 6, 1913, recovered judgment therein for the sum of $657.81.</p> <p>The defendant demurred. The demurrer was heard by Murray, J., who overruled it and ordered judgment for the plaintiff, and, at the request of the defendant, reported the case to the Appellate Division, where an order was made sustaining the demurrer, from which the plaintiff appealed.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Pierce, J. The employee was a carpenter. On June 25, 1913, he was injured by his finger coming in contact with a jointer and was incapacitated for two weeks and four days. The first phalange of the left index finger was injured in such a way that practically all the nail had been taken off. Besides a claim for total incapacity for work, the employee made a claim for additional compensation under St. 1911, c. 751, Part II, § 11, as amended by St. 1913, c. 696. The Industrial Accident Board, upon the claim for additional compensation, found that “the terminal phalange of the forefinger of the left hand is permanently incapable of use.” Their finding as to the nature of the injury is stated in the opinion.</p> <p>The board found that the employee received a personal injury arising out of and in the course of his employment on June 25,1913, and that his total incapacity for work ceased on July 13, 1913; that his average weekly wages were $21 and that there was due him from the insurer the total sum of $125.71, this being twelve weeks’ additional compensation at $10 a week, $120, and four sevenths of a week’s compensation at $10, $5.71, on account of total incapacity for work dating from July 8, 1913, the fifteenth day after the injury.</p> <p>The judge made a decree approving the findings of fact of the Industrial Accident Board, and ordered that payments should be made to the employee of the amounts of compensation awarded by the board, including $120 for additional compensation.</p> <p>The insurer appealed.</p>

<p>Evidence, Book or card system entries. Statute.</p> <p>St. 1913, c. 288, providing that an entry in an account kept in a book or by a card system or by any other system of keeping accounts shall not be inadmissible in any civil proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or self serving, if the court finds that the entry was made in good faith in the regular course of business and before the beginning of the civil proceeding, is a rule of evidence, and under its provisions an auditor who, the day before the statute went into effect, provisionally admitted such evidence, offered by a plaintiff, with leave to the defendant to move later to have it excluded, and denied such a motion of the defendant, made at the conclusion of the plaintiff’s evidence the next day, which was the day the • statute went into effect, and at that time admitted the evidence absolutely, acted properly.</p>

<p>Negligence, Street railway.</p> <p>A street railway company is not liable for injuries suffered by a woman, who was a passenger in a station maintained by it in a subway, by reason of the conduct of a pushing, jostling and boisterous crowd which forced her through the vestibule into the interior of a car and caused her to stumble over a dress suit case left on the floor by another passenger, if it does not appear that the company had reason to expect such a crowd or to anticipate its conduct.</p>

Contract for the sum of $400 and interest, alleged to be due under the provisions of a lease of land, which are quoted in the opinion. Writ dated April 30, 1911.

<p>Contract, Construction. Tax, Assessment.</p> <p>Where, by the provisions of a lease of real estate, the lessee was to pay all taxes assessed thereon, and the lessee on April 5, 1905, sublet the premises to one who agreed to carry out his obligations to the lessor and to "assume the taxes for the year 1905, adjusted ‘as of’ July 1, 1905,” the sublessee must pay five sixths of the tax assessed upon the premises on May 1, 1905, the year referred to being the year of tax assessment and not the calendar year.</p>

<p>Agent, Commission for procuring sale.</p> <p>More than one half of the capital stock of a corporation was held under a voting trust and the remaining stock, which was called treasury stock, was to be disposed of to provide working capital. An agent was employed in behalf of the corporation to make sales of treasury stock and was promised a commission of twenty per cent upon the selling price. The agent had interviews with a potential purchaser and gave him demonstrations of the operations of certain machines which the corporation had been organized to manufacture, in order to induce him to buy treasury stock. As the result of these interviews and demonstrations the purchaser refused to buy any treasury stock, but wished to buy shares of the trust stock, which were not on the market. Thereupon the potential purchaser entered into negotiations with the officers of the corporation which resulted in his buying four hundred shares of the trust stock. Held, that the agent employed to sell the treasury stock had earned no commission on the sale of the trust stock, and that in an action brought by him for such a commission he was not entitled on these facts to go to the jury.</p>

<p>Agency, Scope of authority. Bills and Notes, Authority to execute.</p> <p>The power to bind a principal by a promissory note given in his name either must be granted by express words or must be required as a necessary part of the agency created.</p> <p>The power to borrow money is not within the apparent scope of an agent’s authority unless it is granted expressly or is indispensable to the execution of a power actually conferred or is to be implied from a long course of dealing known to the principal.</p> <p>A woman executed a power of attorney giving the person thus appointed her agent various enumerated powers, including the powers to pay all taxes, to mortgage real estate of the principal in the Commonwealth “and to make, sign and deliver any and all mortgage notes necessary in the premises,” and also to mortgage "any and all real estate owned by [the principal] and to make, execute, sign and deliver any and all promissory notes necessary in the premises,” but containing otherwise no power to borrow money or to make promissory notes. The agent gave a promissory note of his principal, signed in her name by him as her attorney, for money which he borrowed to pay certain unpaid taxes of his principal, and used a large part of the money for this purpose. The principal did not know that these taxes were unpaid, and believed that the agent had more than enough of her money on hand to pay all taxes. The principal refused to pay the note. In an action by the lender against the principal on the note, with additional counts for money lent, money paid and money had and received, it was held, that the plaintiff was not entitled to recover on any of the counts of his declaration.</p>

<p>Negligence, Employer’s liability, Proximate cause.</p> <p>In an action by a workman against his employer, who carried on a wholesale meat and provision business in the basement of a building, for personal injuries resulting from the explosion of a coffee boiler, if there is evidence that at the time of the accident the gate valve of the boiler was closed and had been closed since some time on the day before, that if the valve had been open the accident would not have occurred, and that a person entrusted by the defendant with the care of the valve had been negligent in closing it and in leaving it closed, the defendant can be found to be liable for the plaintiff’s injury; and this would be so, even if the explosion was due in part to the negligent closing of a stopcock of the escape pipe and the defendant was not responsible for that negligence, it being sufficient to establish the defendant’s liability if the explosion was attributable in part to its negligence.</p>

<p> Boston. Special Police Officer. Police. Assault. False Imprisonment. Malicious Prosecution. Agency. </p> <p>A person conducting a place of amusement, who employs and pays a special police officer of the city of Boston appointed on his application under St. 1898, c. 282, § 2, is by the terms of the act “liable for the official misconduct of the officer appointed on such application, as for the torts of any servant or agent in the employ of such . . . person.”</p> <p>The proprietor of a theatre is liable to the purchaser of a ticket properly attending a performance therein, who unlawfully was ejected, assaulted and wrongfully imprisoned by a special police officer of the city of Boston appointed under St. 1898, c. 282, §§ 2, 3, on the application of such proprietor and employed and paid by him.</p> <p>Whether it is within the scope of the employment of a special police officer of the city of Boston, appointed on the application „of the proprietor of a theatre under St. 1898, c. 282, §§ 2, 3, and employed by such proprietor, to institute a criminal prosecution of a person wrongfully removed by him from the theatre, so as to make his employer liable for his acts in an action for malicious prosecution, here was not passed upon, there being evidence of assault and false imprisonment to support the verdict in question.</p>

<p>Tort, by a dealer in real estate against the members of a firm of real estate brokers, for alleged false and fraudulent representations by which the plaintiff was induced to pay $35,000 for the equity of redemption in certain real estate numbered 251 and 259 on Atlantic Avenue in Boston, which was held by the trustees of an unincorporated association called the Atlantic Real Estate Trust, when the property thus purchased by the plaintiff could have been bought for $25,000, which was all that the trustees in fact received for it, the defendants being alleged to have retained the balance for their own benefit. Writ dated October 30, 1909.</p> <p>In the Superior Court the case was tried before Lawton, J. The plaintiff put in evidence certain documents and the testimony of various witnesses, including that of the two defendants. This evidence is described in the opinion. The defendants then called two witnesses, who also testified. The defendants, “desiring to present the question whether there was any evidence for the jury Under the substituted declaration, were permitted without cross-examining the plaintiff and Chaffee [mentioned in the opinion] to move at the conclusion of the evidence mentioned above, that a verdict be directed for the defendants.” The judge ordered a verdict for the defendants; and the plaintiff alleged exceptions, raising the questions described in the opinion. At the allowance of the bill of exceptions, the defendants moved that the testimony of the two witnesses called by them should be reported. The judge denied this motion, and, in allowing the bill, ruled, against the defendants’ objection, that the testimony of the two witnesses called by the defendants “ should not form part of the bill.”</p>

<p>.Contract, with two counts. Writ dated August 17, 1912. The first count alleged that the defendant entered into a contract in writing with Williams and DiFuria, copartners, on October 2,1911, for the erection by Williams and DiFuria of a pipe tunnel between the Harvard Medical School power house and the Peter Bent Brigham Hospital, for which the defendant agreed to pay Williams and DiFuria the sum of $13,500; that by an instrument in writing this agreement was assigned by Williams and DiFuria to the plaintiff on December 23, 1911; that thereafter, to wit, on or about February 26, 1912, the plaintiff agreed to complete the tunnel and the defendant agreed tovpay him therefor the sum of $5,518.86; that relying on the agreement and pursuant thereto the plaintiff completed the tunnel, and the defendant paid the plaintiff on account of such work the sum of $2,600, leaving an unpaid balance of $2,918.86.</p> <p>The second count was for $1,626.22 on an account annexed, as follows:</p> <p>Wells Brothers Company of New York, to Alexander G. Gould, Dr.</p> <p>1. To building one Lovejoy manhole at foot of</p> <p>Vila St...............$100</p> <p>To buildingtwo Standardmanholes on Vila St. 200 To calking up joints on 12-inch sewer with jute................ 75</p> <p>$375.00</p> <p>2. To cutting the corner near power house &</p> <p>cutting off connection between power , house and end of tunnel and bricking up of</p> <p>tunnel............... 200.00</p> <p>3. To installing two 15x10 15-inch sewers in</p> <p>Vila Street............. 551.22</p> <p>4. To installing new water pipes in the tunnel</p> <p>at the request of the defendant . < . . . 500.00</p> <p>$1,626.22</p> <p>The answer was a general denial.</p> <p>In the Superior Court the case was referred to Thomas L. Wiles, Esquire, as auditor. He found that the plaintiff was entitled to recover from the defendant the sum of $4,316.33, Later the case was tried before Lawton, J., upon the auditor’s report and oral evidence. At the close of the evidence, which is described in the opinion, the defendant asked the judge to make the' following rulings:</p> <p>"1. The plaintiff cannot recover upon count 1.</p> <p>“2. The plaintiff cannot recover upon count 1 because this action is prematurely brought.”</p> <p>“4. The plaintiff cannot recover under count 2, Item 1.”</p> <p>“7. The plaintiff cannot recover under count 2, Item 4.</p> <p>“8. The plaintiff cannot recover under count 2, because this</p> <p>action is prematurely brought.”</p> <p>“12. There is no evidence that the defendant contracted to pay the plaintiff the amount claimed in count 2, Item 4.”</p> <p>The judge refused to make any of these rulings. The jury returned a verdict for the plaintiff in the sum of $4,534.25; and the defendant alleged exceptions, including exceptions to the exclusion of certain evidence, which are described sufficiently in the opinion.</p>

<p>Limitations, Statute of. Statute, Construction.</p> <p>‘Under the provision of R. L. c. 202, § 9, that “if, after a cause of action has accrued, the person against whom it has accrued resides out of the Commonwealth, the time of such residence shall be excluded in determining the time limited for the commencement of the action,” the time to be deducted in computing the period of limitation in a civil action does not include a period of time during which the defendant, although he was in a foreign country, retained his domicil in this Commonwealth.</p> <p>It is a well established rule of statutory interpretation, that, when a statute after I having been construed by the courts is re-enacted without material change, the Legislature are presumed to have adopted the judicial construction put upon it.</p>

<p>Executor and, Administrator. Bond, Of executor or administrator.</p> <p>St. 1907, c. 549, limiting the time within which real estate of a deceased person conveyed for value and in good faith can. be taken and sold for payment of his debts, has no application to an action against an administrator and his sureties on his official bond and affords no defense to such an action.</p> <p>It is no defense to an action by a judgment creditor on the official bond of an administrator, that no personal property of the intestate came to the hands of the administrator and that the only real estate of the intestate has been sold • by his heirs to a bona fide purchaser for value; and, if the administrator has failed to petition the Probate Court for a license to sell the real estate of the intestate for the payment of debts within two years from the time of giving bond, and also has failed to represent the estate insolvent, and has not been discharged by a decree of the Probate Court allowing his account, he is liable on his bond to a judgment creditor whose demand against the intestate he has ¡failed to satisfy, irrespective of any hardship that his failure to comply with the provisions of R. L. c. 142, relating to insolvent estates of deceased persons, has brought upon him.</p>

<p>Conversion. Mortgage, Of personal property. Attachment. Constable. Officer.</p> <p>Certain personal property was subject to a mortgage which provided that the mortgagor until default might retain possession of it, that he should not suffer it to be attached on mesne process, and that, if he suffered such an attachment to be made, the mortgagee might take possession of the property and for that purpose, so far as the mortgagor could give authority therefor, might enter upon any premises where it was. While, with the consent of the mortgagee, the 'property was in the possession of one to whom the mortgagor had let it, it was attached by a constable in an action against the mortgagor and was removed and placed in the possession of a keeper. The attachment afterwards was released by the constable by order of the attorney for the plaintiff in that action, but the property was left in the possession of the keeper, although the mortgagee demanded that it be returned to the possession of the person to whom the mortgagor had let it. Held, that the mortgagee might maintain an action for conversion against the constable and might recover the full value of the property.</p>

<p>Evidence, Of rescission of contract, Admissions by conduct, Opinion, Declarations of deceased persons. Contract, Rescission. Practice, Civil, Exceptions. Interest.</p> <p>At the trial of an action by a son against the executor of the will of his father upon a contract in writing of the father to pay the son a certain portion of a salary which the father was receiving from a corporation in which both were interested, the defendant contended that the contract had been rescinded by mutual consent. There was no direct evidence of such consent. The plaintiff admitted that, some time after the last payment made to him on account of the contract, he fell into necessitous circumstances and sought and obtained pecuniary assistance from his father, and the defendant was allowed to introduce in evidence correspondence between the parties as tending to show that the father was acting entirely as the son’s benefactor and not as his debtor. He also offered two letters from the father to the son and a third from the son to the father, which were excluded, dated in the fourth year after the last payment on account of the contract, the first letter being in response to solicita-</p> <p>• tians of the son for money and containing a refusal to pay back debts coupled with an expression of willingness to help with current expenses; the second letter containing an argument that the plaintiff’s son, whom the defendant’s testator was supporting in a private school, should be taken home by the plaintiff and placed in a public school; and the third letter being a general statement by the plaintiff of his financial situation as to his assets and liabilities, written in reply to a letter from his father discussing bankruptcy, and containing no mention of any claim against the father. Held,, that the letters should have been admitted as showing a course of dealing between the parties entirely inconsistent with the relation of debtor and creditor.</p> <p>In the same action, the plaintiff, testifying in rebuttal, further admitted the help solicited by him from his father and given by his father, but testified that he never waived his claim against his father, but that on two occasions he had demanded of his father payments on account thereof, which were refused; and it was held, that the exceptions to the exclusion of the first and second letters mentioned above should be overruled, because the evidence they contained was merely cumulative and might have been excluded in the judge’s discretion; but that the exception to the exclusion of the third letter should be sustained, because the evidence it contained was not cumulative, and its exclusion was prejudicial to the defendant.</p> <p>In the same action it was held that a will and codicil of the father, tending to show that he did not consider himself indebted to his son, the will being dated about a month before and the codicil nearly three years after the last payment by the father on account of the contract; and a letter of the father to a third person dated previous to such last payment, in which he stated that the agreements made with his son were “abrogated not only in a disagreeable but an offensive manner,” properly were excluded, as being at best mere expressions of opinion of the father, and not declarations made upon the personal knowledge of the declarant, admissible in evidence after his death under R. L. c. 175, § ee.</p> <p>Where, at the trial of an action upon a contract in writing by the defendant to pay to the plaintiff a certain sum for a year by monthly payments, it appeared that the defendant had ceased making payments several months before the end of the year and that the action was not brought for several years after-wards, an instruction to the jury that, if the plaintiff was entitled to recover, he was entitled to interest from the end of the year during which the payments were to be made, was sufficiently favorable to the defendant.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by a plasterer’s helper against his employer for personal injuries received in 1910 while the plaintiff under the direction of a superintendent of the defendant was helping to take down a temporary staging from the outside of a building in process of construction, there was evidence tending to show that the staging had been constructed three days before the plaintiff was injured of boards that were rough on the edges and had been used before for similar purposes, the boards being passed up by the superintendent to a fellow workman of the plaintiff and laid but not nailed upon brackets or ledger boards; that as to one of the boards used in the section which the plaintiff was taking down when he was injured, the superintendent warned such other workman to look out for “a nail sticking out in it,” that the workman thereupon placed the plank with the nail protruding downward; that, as the plaintiff was taking down the staging and was throwing the planks to the ground, a nail caught upon his clothing and he was thrown down. There was no evidence tending to show that this nail was the same one that the superintendent had noticed when the staging was constructed. Held, that there was no evidence of negligence of the defendant either under the employers’ liability act or at common law, because he was under no duty to warn or instruct the plaintiff concerning so obvious a danger incidental to his employment.</p>

<p>Tort by a woman for personal injuries caused by her thumb being jammed by the closing of a door leading from the front vestibule into the interior of a street railway car of the defendant which she was entering at the Park Street station of the subway in Boston. Writ dated March 29, 1912.</p> <p>In the Superior Court the case was tried before Keating, J. The material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bills and Notes, Consideration. Practice, Civil, Exceptions, Findings by judge.</p> <p>If, at the maturity of a negotiable promissory note which was without consideration, the maker makes a partial payment thereon and gives a new note for the balance, the new note is without consideration and no action can be maintained thereon by the payee against the maker.</p> <p>A judge who without a jury hears an action of contract by the payee against the maker of a promissory note, where the defendant contends and introduces evidence tending to show that the note was without consideration, is not bound to rule that on all the evidence he should find for the plaintiff; and even upon a bill of exceptions stating all the evidence, a finding by him for the defendant will not be reviewed by this court. „</p>

<p>Negligence, Employer’s liability. Automobile.</p> <p>In an action by a chauffeur against his employer for personal injuries sustained from the cranking handle of an automobile flying back and striking the plaintiff on the wrist when he was attempting to obey an order of the defendant to crank the car, where it appears that the plaintiff entered the defendant’s employ as a chauffeur on the previous day and was injured on his first trip, and that, although he was an experienced chauffeur, he was not familiar with the mechanism of that particular car, which had been bought by the defendant on the previous day, if there is evidence that, when the plaintiff was cranking the car, the defendant without the plaintiff’s knowledge changed the position of the levers, and either knew that the probable effect would be to cause a “back fire” or was ignorant what the effect would be, the plaintiff is entitled to go to the jury on the questions whether he was in the exercise of due care and whether the defendant was negligent.</p>

<p>landlord and Tenant, Liability of landlord to third persons. Negligence, License or invitation.</p> <p>A woman who, taking her stepdaughter with her, goes to call upon another woman, whom she has known for eight or nine years, in an apartment in a tenement building for the purpose of seeing such other woman about getting her stepdaughter something to do, is, in relation to the owner of the building in control of its stairways, a bare licensee, to whom such owner owes no duty to furnish a properly constructed stairway or a sufficiently lighted - hallway.</p>

<p>Tort for the alleged conversion of a diamond ring. Writ in the Municipal Court of the City of Boston dated October 31,1910.</p> <p>On appeal to the Superior Court the case was submitted to Hall, J., upon an agreed statement of facts, including the facts which are stated in the opinion.</p> <p>At the request of the defendant the judge made the following rulings:</p> <p>“2. The plaintiff is a pedler within the meaning of R. L. c. 65, §13.</p> <p>“3. That the sale of the ring in question was made by the plaintiff as a pedler of jewelry in violation of R. L. c. 65, § 14.” The defendant also asked the judge to make the following rulings:</p> <p>“1. That upon the agreed statement of facts submitted the defendant is entitled to a finding.”</p> <p>“4. The sale of jewelry by pedlers being expressly prohibited, and being subject to a statutory penalty, leaves the contract absolutely unenforceable, as far as the plaintiff is concerned, against the vendee or any one holding under him.</p> <p>“5. That the sale of the ring in question upon conditional terms to Tedesco was null and void, and the plaintiff is without remedy to enforce any of its terms or to obtain repossession of the article.</p> <p>“6. The plaintiff is without legal remedy against the defendant, because of illegality of the transaction, and the law will leave the parties where it finds them, and it is immaterial that by the terms of the agreement the plaintiff retained title to the ring delivered to Tedesco.”</p> <p>The judge refused to make any of these rulings. He found for the plaintiff in the sum of $150; and the defendant alleged exceptions.</p> <p>R. L. c. 65, § 13, defines hawkers and pedlers and provides a penalty for sales in violation of the statute. Section 14 is as follows: “The sale by hawkers or pedlers of jewelry, wines, spirituous liquors and playing cards is prohibited.”</p>

<p>Writ of entry in the Land Court, brought by the adminis1 trator of the estate of and the sole heir at law of Nancy S. Davis, formerly Nancy S. Deans, dated January 17, 1911, for an undivided one fifth part in a certain parcel of land in Needham.</p> <p>On February 6, 1912, a bill in equity was filed by the heirs at law of John A. Wing to enjoin the demandant from prosecuting his writ. By a decision of this court, reported in 214 Mass. 546, it was held that a deed to John A. Wing executed by Nancy S. Deans in 1871 was void as to her because her husband did not join therein or assent thereto in writing, and it was ordered that the bill be dismissed.</p> <p>After the issuing of the rescript in the suit in equity the writ of entry was tried on its merits before Davis, J.</p> <p>It was agreed that the demandant’s ancestor, Nancy S. Deans, was seised of one undivided fifth interest in the demanded premises on and before April 7,1871, that on April 7,1871, she joined in a deed of the demanded premises to John A. Wing, that on said date Hannah M. Richards, named therein, had a life interest in said real estate, that the other persons named as grantors in said deed were tenants in common in remainder, each having one undivided fifth interest in remainder, and that said deed, and the covenants therein, were valid and effectual in all respects as to all parties named as grantors, except as such deed and covenants might not have been valid and effectual as against Nancy S. Deans. The facts on which the validity or invalidity as to her of the deed and covenants depended, in addition to the foregoing, were as follows: That Nancy S. Deans had on said date as her sole and separate property one undivided fifth interest in remainder in said estate; that she was over the age of twenty-one years and was the lawful wife of George W. Deans, who was then living and did not join in said deed, and never assented thereto in writing; that immediately thereafter John A. Wing entered upon said premises, and he and his successors in title were and remained in open and adverse possession of the same until the filing of the writ of entry by the demandant; that thereafter, on May 12,1881, Nancy S. Deans was granted a decree of divorce nisi by the Supreme Judicial Court for Suffolk county on her libel against her said husband, and thereafter married George C. Davis some time between 1881 and 1891, and that said George W. Deans died in 1888; that Hannah M. Richards died on October 16,1906, Nancy S. Deans, then become Davis, being then living; that said Nancy died intestate on April 26, 1907, leaving the demandant as her only heir at law.</p> <p>The demandant further introduced in evidence the decision in Wing v. Beans, 214 Mass. 546, and claimed the demanded one fifth interest as heir at law and administrator of the estate of said Nancy.</p> <p>The following additional facts also appeared in evidence: That, at the time of her deed in question, the widow, Hannah M. Richards, and all the heirs of Jeremiah F. Richards, named in said deed, were living in Dedham and Nancy S. Deans was living with her husband across the street from her mother’s family; that she was friendly with her family, but her husband was not; that the family owned a good deal of unimproved land, but had little or no money; that they were indebted for provisions and other necessaries to John A. Wing; that the amount of this indebtedness of about $300 formed a part of the consideration of the deed referred to, the balance of the purchase money being paid in cabh; that the sale was. necessary; that the said Nancy took part in the transaction; that Wing immediately entered upon the premises and said Nancy continued to five where she knew, or must be presumed to have known, of the continued and exclusive occupation by Wing and those claiming under him from 1871 until her death in 1907; and that the scrivener who drew the deed mentioned above was acting for both sides.</p> <p>The tenant offered- to show the conversations of the parties in the presence of the scrivener regarding the proposed deed and the instructions given him by them relative to the transfer of the premises to Wing, and offered to show that all the grantors desired and intended to give a clear title in fee to Wing, and that the life tenant told her children, the remaindermen, to do whatever was necessary to make such conveyance, leaving the disposition of the property entirely with them, and further, that the scrivener was told to draw a deed to convey such an estate in fee.</p> <p>Upon the demandant’s objection, the judge excluded all testimony as to instructions given to the scrivener and the intent of the parties as orally expressed, and the tenant excepted.</p> <p>The judge found from the deed and the attendant circumstances that the intent of all the parties was to convey the land in question to Wing.</p> <p>The tenant contended that the demandant’s ancestor was estopped by her conduct, although the deed was void as to her, and further contended that title had been acquired as against, such ancestor by adverse possession, but the judge ruled, as a matter of law: „</p> <p>1. That, the deed of Nancy S. Deans being void under the decision of this court in Wing v. Beans, 214 Mass. 546, there was no estoppel by her conduct, that the decision was conclusive against the tenant on the question of estoppel, and that, the deed being void, the whole transaction fell as to her interest.</p> <p>2. That, although Nancy S. Deans took part in the deed to Wing purporting to put him in the premises as of a full estate in fee and allowed him to remain in for more than twenty years and to improve the estate, yet she was not estopped because she could not have taken any action to assert her actual title until 1906.</p> <p>3. That if Nancy S. Deans ought not to have taken action or could not have taken action to assert her title, there was no estoppel against her.</p> <p>4. That, although the tenant and those under whom he claimed had been in open, continuous and exclusive adverse possession of the premises, claiming an estate in fee simple for more than twenty years with the knowledge of said Nancy, no title had been acquired as against her.</p> <p>5. That Nancy S. Deans could not have asserted her rights to the premises until the death of the life tenant in 1906, and that adverse possession did not begin to run against her until such death.</p> <p>6. That the life estate of Hannah M. Richards was not extinguished by the transaction and deed in question.</p> <p>7. That Nancy was not a co-tenant after the execution of the deed to Wing and that she could not have asserted her rights before the death of the life tenant in 1906.</p> <p>8. That the demandant could maintain the writ of entry in this case.</p> <p>The demandant having waived any claim for damages and the tenant having waived any claim for improvements, the judge ordered judgment for the demandant for an undivided fifth interest in the land in question. The tenant alleged exceptions.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board.</p> <p>The case was heard by Wait, J. The material facts found by the Industrial Accident Board, who adopted the findings of the committee of arbitration, are stated in the opinion. Upon these facts the Industrial Accident Board found that the insurer did not furnish medical attendance to the employee, and that there was due to the employee from the insurer the sum of $22.50 on account of medical services rendered by Dr. Joseph B. Sayles during the first two weeks after the injury, to wit, from March 25, 1913, to April 7, 1913, and two days’ compensation at half the employee’s average weekly wage of $8.25, which was $1.44, the total amount due being $23.94.</p> <p>The judge made a decree confirming the finding of the Industrial Accident Board and ordering that the insurer pay to the employee the sum of $23.94. The insurer appealed.</p>

<p>Negligence, Street railway, Gross.</p> <p>In an action, by the administrator of the estate of a street sweeper employed by a city against a corporation operating a street railway, under R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate before the enactment of St. 1907, c. 392, there was evidence that the accident occurred on a clear night at a place about midway between two electric lights, each somewhat over two hundred feet distant, and on a street containing parallel tracks of the defendant on which street cars passed in each direction at frequent intervals, that the plaintiff’s intestate, whose hearing was slightly impaired, had finished sweeping one side of the street and was proceeding to cross the street to help the men at work on the other side, and in doing so looked from three different positions in the direction from which the car that struck him came and no car then was in sight, that when he nearly had passed over the second track he was struck and'killed by a car of the defendant moving at the rate of thirty miles an hour, and that his body was rolled over by the impact and was thrown upon a pile of dirt seven or eight feet from the nearest rail while the car went on for two hundred feet farther before it was stopped, that there was a city ordinance in force at the time of the accident restricting the speed of cars on . this street at this place to eight miles an hour, that the motorman knew or ought to have known that city laborers were at work every night sweeping the street in the vicinity of the place where the accident happened, and that the motorman also knew that his view would be partially, if not wholly, obstructed until he had reached a point at the top of a grade two hundred and sixty-five feet from the place of the accident, and that he sounded no gong and gave no other warning of the approach of the car. Held, that there was evidence for the jury that the plaintiff’s intestate was in the exercise of due care and that the defendant’s motorman was grossly negligent.</p>

<p>Negligence, Street railway, In subway.</p> <p>If a man at a station in a subway enters the space between two seats of ariopen 1 street railway car, justifiably thinking that there is a place to sit down there but finding none, and, being ordered by the conductor after the car has started, to get out of the space and to go to a seat in the rear of the car, obeys by getting on the running board to go back, noticing that there is room for him in the space between the car and the wall of the subway and not knowing that immediately ahead this space will be narrowed by the tracks being laid near the wall, and if, as the car moves, his shoulder comes in contact with the wall and he is thrown beneath the car and injured, these facts in an action for his injuries are evidence of due care on his part.</p> <p>A conductor of a street railway corporation upon an open street railway car, passing through a subway on his regular route, must be taken to know that at a certain place in the subway the space between the car and the wall of the subway will be narrowed by the tracks being laid near the wall, and if, just as the car is approaching this part of the subway, he seeks to enforce a reasonable rule of the company forbidding passengers to stand between the seats by ordering a passenger so standing to get out of the space and go to a seat at the rear of the car, and thereupon the passenger, being ignorant of the construction of the subway, steps upon the running board to obey the conductor’s order and, as the car moves on, comes in contact with the wall of the subway and is injured, these facts, in an action by the passenger for Ms injuries, are evidence of negligence on the part of the conductor.</p>

<p>On April 23, 1914, the following order was adopted by the House of Representatives and on the same day was adopted in concurrence by the Senate. On April 29, 1914, the order was transmitted to the Justices of the Supreme Judicial Court, who on May 28,1914, returned the answer which is subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the General Court upon the following questions of law:</p> <p>First. Can the General Court exempt from the general property tax the following described property:</p> <p>(a) Stock of foreign corporations, the property, capital stock or franchises of which are subject to taxation where situated, or where the corporation is organized, or the properties of which are situated within foreign jurisdictions, or the franchises of which are taxed in this State in proportion to the business done here;</p> <p>(b) Stock of foreign corporations with respect to which a valid, excise, duty, or stamp tax has been levied by this Commonwealth;</p> <p>(c) Bonds and notes secured by property which is subject to taxation where situated, or by property which is located within a foreign jurisdiction or the value of which is based upon such property;</p> <p>(d) Bonds and notes with respect to which a valid excise, duty, or stamp tax has been levied by this Commonwealth?</p> <p>Second. Can the General Court impose an excise upon the issue by corporations holding charters from this Commonwealth of bonds or notes, or upon the annual or periodic registration by an agent of the Commonwealth of such bonds or notes?</p> <p>Third. Can the General Court grant to the owners or holders (a) of such stock or (jb) of such bonds and notes as are referred to in the first question, the privilege of registering them with an agent of the Commonwealth, and of establishing the right to and securing an exemption of such stock, bonds, or notes from the general property tax, by filing with such agent satisfactory evidence of the existence or continuance of the conditions referred to in such question, and can it impose an excise upon such privilege either in the form of a single payment or of a periodic charge?</p> <p>Fourth. Can the General Court impose a duty or an excise on the income derived during any given period from the following classes of property, respectively: — (o) all personal property, (b) all intangible personal property, (c) bonds, notes and other debts, or (d) stock of corporations?</p> <p>Fifth. Can the General Court impose a duty or an excise on the use of transferable paper writings as symbols or evidences (a) of ownership of shares of foreign corporations or of associations or (6) of the indebtedness of corporations, associations, or individuals?</p> <p>Sixth. Can the General Court impose a stamp duty or tax upon transferable paper writings such as stock certificates or bonds or notes, payable at the time of the issue thereof or periodically; and can it deny to the owners of such writings recognition of the nature and effect of such writings as property or as evidences of ownership, or the right to transfer or pledge the same or the property represented thereby unless bearing the required stamp?</p> <p>And be it further ordered, That the Justices of the Supreme Judicial Court be informed that the foregoing questions are put with a view to legislation upon the subjects therein mentioned, and that for their information a copy of House document No. 2512, being a message from the Governor of the Commonwealth upon the subjects mentioned in the foregoing questions, be transmitted to the Justices.</p> <p>House document No. 2512, containing a message from the Governor, which was transmitted to the Justices with the foregoing order, was as follows:</p> <p>House Document No. 2512.</p> <p>The Commonwealth of Massachusetts.</p> <p>Executive Department, Boston, April 22, 1914.</p>