Volume 218 — Massachusetts Reports

<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 Crosby, J. The Industrial Accident Board upon an agreed statement of facts found as follows:</p> <p>Emily Sundine, the employee, in the employ of one Olsen named below, was injured on November 29, 1912, while coming down a flight of stairs leading from the third floor to the second floor of the building numbered 376 on Washington Street in Boston. She was coming from the workroom of F. L. Dunne and Company on the fourth floor of the building at about noon. At the time of the accident she was on her way out to luncheon and was descending to the street, accompanied by another woman. She felTfrom the secondlFtLird step from the top of the flight of stairs to the bottom and sprained her right ankle. The stairs were of wood and the treads of the stairs were somewhat worn. There was no artificial light for these stairs and the upper part of the flight was dark.</p> <p>This was the only flight of stairs by which the employee could reach or leave the workroom;* there was no elevator for her to uSe7=ató"itawasTecSsaryTOT^héFTo==uH"tInsTEgEFFf-stairs in going to ancT from her work! The employee" contended~tEat the accident was due to the insufficient lighting "oF these stairs and also to the fact that"they were worn" down, causing her to Ml ....... .......7 .....</p> <p>F. L. Dunne and Company on the day of the accident were the lessees of the workroom in which the employee worked on the fourth floor, being sublessees from A. H. Howe and Sons, who were the lessees of the whole building. The workroom was used exclusively for making clothing for F. L. Dunne and Company, who were tailors and let out their work to different men who were paid a stipulated price per garment, F. L. Dunne and Company furnishing the goods. One of the men who made clothing for F. L. Dunne and Company in this room was Olsen, and Olsen paid the employee her weekly wages of $12 a week for assisting him in making clothing for F. L. Dunne and. Company. F. L. Dunne and Company were covered by insurance under the workmen’s compensation act by the London Guarantee and Accident Company, Limited. Olsen was not covered by insurance under the act.</p> <p>The employee was out of work from November 29, 1912, to February 24, 1913, which was the earliest date at which she was able to go to work. The attending physician’s bill for the first two weeks’ services was $24.</p> <p>The decision of the board was as follows:</p> <p>“We find that it was a necessary incident of her employment to use the flight of stairs upon which she was when she was injured andj tEerefore, rule that the injury arose out of and in the coiirse of her employment.</p> <p>“It also appears from the statement of facts that Olsen, for whom the employee was working, was a contractor for F. L. Dunne and Company within the meaning of Part III, § 17, of the workmen’s compensation act, and we rule that she is entitled to compensation.</p> <p>“It was agreed that her average weekly wages were $12. We, therefore, find that she is entitled to compensation at the rate of $6 a week from the fifteenth day after her injury, to wit, from December 13, 1912, to the 23rd day of February, 1913, inclusive, amounting in all to sixty-two dollars and fifty-seven cents, together with her physician’s bill for medical services for the first two weeks after the injury, which it was agreed was $24, amounting in all to $86.57.”</p> <p>The judge made a decree in accordance with the decision of the Industrial Accident Board, ordering that the insurer should pay to the employee the total amount of $86.57. The insurer appealed.</p>

<p> Frauds, Statute of. </p> <p>An oral promise, made to a contractor for the mason work of certain houses by the mortgagee under a construction mortgage upon the property, that, if the contractor will go on with his work under his contract with the builder, the mortgagee will pay him the amounts that become due to him under this contract, is a promise to answer for the debt of another under R. L. c. 74, § 1, cl. 2, on which the contractor can maintain no action against the mortgagee, if the defense of the statute of frauds is set up in the answer. In such an attempted action it does not help the plaintiff to prove that there was a valuable consideration for the defendant’s promise or to show that the defendant made payments from time to time in part performance of his oral promise.</p>

<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 Crosby, J. The material facts found by the Industrial Accident Board are stated in the opinion, where also are stated the questions of law raised by Bridget Burns, the executrix of the will of the deceased employee and his dependent widow, and by the insurer.</p> <p>The judge made a decree, reciting that it appeared by the decision of the Industrial Accident Board that the deceased employee received a personal injury arising out of and in the course of his employment which terminated fatally, and that such personal injury was not caused by the serious and wilful misconduct of the employer, and ordering that there be paid by the insurer to Bridget Burns, as executrix, specific compensation under St. 1911, c. 751, Part II, § 11, amounting to $68.46, being ten and one seventh weeks’ compensation under that section at $6.75 a week and eight and one seventh weeks’ compensation under Part II, § 9, on account of total incapacity for work at the rate of $6.75 a week, that is $54.96, and that there be paid to Bridget Burns as dependent widow, who lived with her husband at the time of his death, the sum of $6.75 weekly, that is, one half his average weekly wages, for a period of three hundred weeks from the date of his injury, less eight and one seventh weeks’ compensation to be paid the executrix on account of total incapacity for work before the date of his death, and a reasonable allowance for medical and hospital service and medicines during the first two weeks after the injury.</p> <p>The insurer, and also Bridget Burns as executrix, appealed from the decree.</p>

<p>Contract, by Charlesbank Homes, a corporation organized under the provisions of R. L. c. 125, against the city of Boston to recover $2,965.12, the amount of a tax paid by the plaintiff under protest, wMch was assessed upon the plaintiff’s land and building at the corner of Charles Street and Poplar Street in Boston for the year 1912. Writ dated April 15, 1913.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts to Hardy, J., who found for the plaintiff in the sum of $3,184.78, and ordered judgment accordingly. From the judgment entered in pursuance of this order the defendant appealed.</p>

<p>Agency, Scope of employment. Evidence, Admissions and confessions.</p> <p>In an action for personal injuries from being knocked down by an automobile of the defendant negligently driven by the defendant’s chauffeur, where the only question is whether at the time of the accident the chauffeur was acting within the scope of his employment, there was evidence that it was the duty of the chauffeur to go for the defendant’s children at a certain school, that he was permitted to use the automobile in going to his dinner at his boarding place and to a certain shop on his way to the school, that at the time of the accident he had been to his dinner and had stopped at the shop, but that then, instead of driving directly to the school, he took another and a longer route for the purpose of obliging an acquaintance by taking him to a place to which he wished to go, and that, while he was doing this, the accident happened. The chauffeur testified that he never was instructed by the defendant how to go to the school and could go there by any route that he chose, that, after the happening of the accident, he told the defendant “the whole story, just the way it was,” and that the defendant said that he had the right to be where he was when the accident happened and that there was nothing for him to worry about. Held, that the jury could find that this remark of the defendant was an admission by the defendant that, as between him and the chauffeur, the latter properly was driving the automobile at the place of the accident in the performance of his duty to the defendant, and that with this statement there was evidence for the jury that at the time of the accident the chauffeur was acting within the scope of his employment.</p>

<p>Contract against one of the sureties on a bond given by the husband of the plaintiff in proceedings in the Probate Court for the County of Suffolk upon a petition of the plaintiff under R. L. c. 153, § 33, for separate support. Writ in the Municipal Court of the City of Boston dated March 24, 1911.</p> <p>On appeal to the Superior Court the case was tried before Aiken, C. J., who found that judgment should be entered for the plaintiff in the penal sum of the bond, to wit, $1,000, with interest from the date of the writ, and further determined that the sum due and payable in equity and good conscience exceeded the judgment to be entered, and therefore awarded execution for the full amount of such judgment and interest thereon from the date of the writ.</p> <p>At the request of the parties the Chief Justice reported the case for determination by this court upon the pleadings and his findings of fact, which included the facts stated in the opinion.</p>

<p>Milk. Evidence, Presumptions and burden of proof.</p> <p>In an action of contract for the price of milk sold and delivered, where at the trial the plaintiff has shown that the milk was sold and delivered to the defendant and during a long period was accepted by him without complaint, and where the defendant at the trial has introduced no evidence that R. L. c. 56, §§ 56, 57, was violated by the plaintiff or that the milk furnished by him was not natural unadulterated milk of the quality required by the statute, and the defendant’s counsel has made no suggestion to this effect before the close of the evidence, the plaintiff, on this evidence and the presumption of innocence, is entitled to go to the jury, although he introduced no direct evidence that the percentage of milk solids contained in the milk sold by him to the defendant was that required by R. L. c. 56, § 56.</p>

<p>Petition, filed in the Probate Court for the County of Middle-sex under R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256, by the surviving husband of Ellen McGrath, late of Lowell, who died without issue on July 19, 1911, leaving a will by the terms of which her husband, the petitioner, was to receive one third of her property real and personal, to compel the executor of the will to sell real estate that belonged to the testatrix to provide for the payment to the petitioner of $5,000, the petitioner having filed under R. L. c. 135, § 16, a writing signed by him waiving the provisions made for him in the will and claiming such portion of the estate of the deceased as he would have taken if the deceased had died intestate.</p> <p>In the Probate Court Lawton, J., made a decree granting the petition. The executor of the will appealed.</p> <p>The appeal was heard by Loring, J. The facts found by him are stated in the opinion. The justice found that the whole of the estate exceeded the sum of $5,000, of which $3,022.31 was personal property. In regard to the writing filed by the counsel for the petitioner, which is described in the opinion, the justice ruled that the words “and consent that said instrument may be allowed as the last will of said Ellen McGrath” were not, especially in the connection in which they were used, equivalent to consenting to the will or to the provisions of the will. At the request of the parties the justice reported the cáse for determination by the full court.</p>

<p>Bills and Notes, Negotiability.</p> <p>The words “as per terms of contract,” written after the words “Value received” on the face of a promissory note by the maker before its delivery, do not destroy the negotiability of the note or make its payment to a holder in due course conditional upon the performance of a contract intended to be referred to by the maker.</p>

<p>Bill in equity, filed in the Probate Court on October 24, 1911, by the heirs at law and next of kin of Jonathan Mann, late of Milton, against the trustees under his will and the Attorney General, praying that the trust attempted to be established by article 14 of the will, quoted in the opinion, be declared void and that the property held by the defendants by virtue of that article be declared to belong to the plaintiffs.</p> <p>The will, as modified by a compromise agreement not affecting the terms of article 14, was allowed on April 5, 1893.</p> <p>The case was heard in the Probate Court by Flint, J., who made a decree granting the prayers of the bill.</p> <p>The defendants appealed. The plaintiffs moved to dismiss the appeal of the trustees on the ground that they had “no legal or financial interest in the subject matter of said bill,” and were “not such parties as have a right by law to appeal.”</p> <p>The case was heard in this court by Braley, J., who found “that the plaintiffs are all the heirs at law or next of kin of the testator; that the inventory returned by the trustees shows only $31,876.26 of personal property, and the last account filed by them shows a balance in their hands of $21,964.58, which may be increased by the principal of other trusts under the will upon the death of the beneficiaries for life. No temple has been built or school founded, as called for by the fourteenth clause.”</p> <p>The single justice reserved the case for determination by the full court.</p>

<p>Devise and Legacy. Words, “Domestic servante.”</p> <p>A testator who owned an estate consisting of a house and stable, with large grounds, and who kept horses and carriages and an equipped stable and employed a “foreman,” a coachman, a “saddle horse man” and a “stableman or groom” who did not live in the house, and two women, who lived at the house and who served him as cook and second girl respectively, by his will provided, in the order named, for his wife and children, some more distant relations of himself and his wife, some persons not relations, and then gave 35,000 each to the foreman, the coachman, the second girl and the cook. He then provided as follows: “I also give 55,000 to each of my domestic servants, other than those named in the two preceding Articles [the cook and the second girl], who shall be in my service at my decease and who shall have been in such service for the five years immediately preceding my death.” The groom, who had been in the service of the testator for the five years specified, brought an action against the executor of the will for a legacy under the quoted article of the will. Held, that the action could not be maintained, because the groom was not one of the testator’s “domestic servants” within the meaning of the will.</p>

<p>Negligence, Street railway.</p> <p>Where, at the trial of an action against a street railway company for personal injuries received by a passenger upon an open electric street car of the defendant, as he was alighting from the car and was grasping the ironwork at the end of a seat, by the seat being turned over upon his wrist, there is evidence tending to show that the seat was turned over by one of a turbulent and boisterous crowd who were attempting violently to get upon the car, that the presence of such a crowd at that place and time of day was not unusual and was likely to result in injury to passengers alighting from cars, and that the defendant’s employees had not attempted to do anything to protect the plaintiff, a verdict for the plaintiff is warranted.</p>

<p>Negligence, Employer’s liability, Elevated railway.</p> <p>At the trial of an action under St. 1909, c. 514, § 127, cl. 3; § 129, against an elevated railway company for causing the death of a workman of the defendant who was rim over by an elevated train while he with others was engaged in work upon the defendant’s apparatus on the elevated tracks, where the declaration alleged that the death was caused by negligence of a motorman of the elevated train in failing to warn the workman of the train’s approach and in running the train at a reckless and excessive rate of speed, there was evidence tending to show that during the progress of the work it was necessary for the workmen to leave the work and cross a track to a platform every time a train passed on that track, that trains sometimes passed as often as every three minutes, that for about five weeks while the work was going on the custom had been for a foreman, or, in his absence, one of the workmen, to proceed along the track to a point at least one hundred and fifty feet away, where trains approaching at a distance of seven hundred feet could be seen, and to blow a whistle when a train came, and that no one ever before had failed to get out of the way when the whistle was blown; that on the occasion in question a fellow workman gave such a warning of the approaching train, that all the other workmen left the track in ample time but that the plaintiff’s decedent for some reason unexplained by the evidence remained sitting on the rail with his back to the train; that, as or just before the train passed him, the man who had signalled motioned to the motorman, intending to warn him, but instead gave the trainman’s signal that meant “go ahead,” that the train then was going twenty miles an hour and immediately slowed down and pushed against the decedent, causing him to fall from the track to the street and to be instantly killed. Held, that there was no evidence of negligence on the part of the motorman.</p> <p>Twenty miles an hour is not a reckless or excessive rate of speed for the running of an elevated train around curves under ordinary conditions.</p>

<p>Negligence, Of one controlling real estate. Landlord and Tenant, Landlord’s duty to tenant’s customer.</p> <p>The owner of a building, who has let the entire second floor to a milliner but retains control of a front stairway leading to a landing on the second floor and of the landing itself, on which are doors leading to the milliner’s rooms, and also of a rear stairway which is approached from the landing through a closed door and leads to the rear of the first floor, is not liable for personal injuries received by a customer of the milliner who, going to the landing by the milliner’s invitatian, by mistake opened the door leading down the back stairs and fell down those stairs, because it cannot be said that the owner invited the customer to use the back stairs or was under any obligation to the customer to keep the door leading to them locked.</p>

<p>Tort to recover damages for injuries to a large limousine automobile of the plaintiff from being run into on January 14,1910, by a street railway car of the defendant running on a single track on the State highway and main road leading from Amesbury through Merrimac and Haverhill to Boston. Writ dated April 12, 1910.</p> <p>In the Superior Court the case was tried before McLaughlin, J. At the close of the evidence, which is described in the opinion, the defendant asked the judge to rule that on all the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,465.19. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

Tort for personal injuries sustained on August 7, 1911, when the plaintiff was in the employ of the defendant, who carried on business under the name of the Ballard Japanning Company. Writ dated January 20, 1912. In the Superior Court the case was tried before Quinn, J. The declaration and the evidence are described in the opinion. At the close of the evidence the judge refused to order a verdict for the defendant.

<p>Contract by the administrator of the estate of Thomas Gannett, late of Cambridge, who died on December 9, 1912, to recover the sum of $22,791.27 with interest from August 4, 1913, as the amount of a tax assessed for the year 1912 and paid to the city of Cambridge under protest. Writ dated August 7, 1913; and a</p> <p>Petition under St. 1909, c. 490, Part I, § 77, filed on August 4, 1913, by the same administrator, appealing from the refusal of the assessors of the city of Cambridge to abate the tax above mentioned; also a</p> <p>Petition filed on the same day under St. 1910, c. 260, appealing from the revision of the valuation of the property of the petitioner’s intestate by the tax commissioner which was the basis of the assessment of the tax.</p> <p>In the Superior Court the three cases were heard together by Wait, J., upon an agreed statement of facts, which included the facts stated in the opinion. The judge found the facts to be as stated. In the action of contract he found for the plaintiff in the sum of $23,566.17, and at the request of the parties reported the case for determination by this court with the stipulation that, if this finding was correct, judgment should be entered for the plaintiff, and that, if it was wrong, such entry or order should be made as justice required. He denied the petition for an abatement and ordered that the appeal under St. 1910, c. 260, be dismissed, and at the request of the parties also reported those cases for determination by this court.</p> <p>The cases were submitted on briefs.</p>

<p> Clerks of Courts. Limitations, Statute of. </p> <p>If a clerk of court neglects to enter a judgment for the plaintiff in an action, in consequence of which the action subsequently is dismissed for want of prosecution, this gives the plaintiff an immediate right of action against the clerk, on which the statute of limitations begins to run from the time when the judgment should have been entered, although the plaintiff’s consequent financial loss is not ascertained, or even does not occur, until long afterwards.</p>

Tort by the trustees in bankruptcy of the L. W. Taylor Company, a partnership, consisting of Leonard W. Taylor and John H. Barnes engaged in the business of building contractors, to recover the amount of an alleged unlawful preference under the bankruptcy act of 1898, § 60'a, as amended in 1903 and 1910. Writ dated September 5, 1912.

<p>Negligence, Invited person.</p> <p>An invitation, by a general contractor in charge of alterations in a building to an employee of a subcontractor, to use in the course of his employment stairs which workmen of the contractor have nearly completed and upon which they are laying balusters or rounds, is an invitation to use the stairs in the condition in which they are as to light and incompletion, and such employee of a subcontractor has no right of recovery from the general contractor for personal injuries caused by his stepping on a round lying upon the stairs and slipping and falling, because the general contractor owed him no duty to give him any warning of such a risk, which was obvious upon proper inspection.</p>

<p>Contract upon an account annexed for $116.20 for board and care and the amount paid to a special nurse for the defendant’s wife. Writ in the Municipal Court of the City of Boston dated February 1, 1913.</p> <p>In the Municipal Court the case was heard by Bolster, C. J. He filed a memorandum containing findings and rulings in substance as follows:</p> <p>Since October 7, 1896, the defendant’s wife had lived apart from him by mutual consent, neither party desiring or being willing to resume marital relations. In November, 1896, she filed in the Probate Court a petition for separate support. At the time of the trial of this action, no adjudication had been had on that petition, which was still pending. Interlocutory orders had been made and complied with for increasing weekly payments, $10 weekly since 1902.</p> <p>In 1899 certain back bills were paid by the defendant and a stipulation was made, which provided in substance that, in view of a decree of the Probate Court, then in force, that the defendant should pay his wife $7 a week for her separate support and that he should pay $173 for some extraordinary bills contracted by her, it was “agreed that no demand shall be hereafter made upon said William for the payment, nor shall he be required or expected to pay weekly more than the $7 per week as decreed, under any circumstances, unless said decree shall be modified by the court, or for any indebtedness of or bills contracted by said Mary, unless the occasion for incurring such indebtedness and the reasons therefor are, before the same are incurred or contracted, fully stated and explained to said William, and an opportunity given bim to express his views thereupon, and reasons, if any, against the same.”</p> <p>In 1911, being ill and advised to undergo an operation, the wife sent notice of the situation to the defendant, who refused to become responsible.</p> <p>The expenditures set out in the account annexed were necessary to the defendant’s wife’s prolonged health, and the amount was proportionate to his means and situation in life. The weekly allowance ordered by the Probate Court was adequate for her ordinary living expenses, but was inadequate for such unusual and extraordinary expense as the surgical operation.</p> <p>On June 15, 1912, the wife filed a petition in the Probate Court, asking that the defendant be required to pay bills incurred in connection with the operation, amounting to $551.42, which included the items in the declaration in this case.</p> <p>The defendant asked for the following ruling: “33. The pendency of the petition for the allowance of this claim in favor of the plaintiff by the Probate Court, is a good defense to the present action.”</p> <p>The ruling was refused. There was a finding for the defendant, and the case was reported to the Appellate Division, who dismissed the report. The plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries alleged to have been sustained when the plaintiff, a child ten years of age, was walking on a path upon premises of the defendant in that part of Boston called East Boston and fell against a pole which was charged with electricity. Writ dated December 6, 1909.</p> <p>In the Superior Court the case was tried before Wait, J. The plaintiff’s evidence tended to show the following facts: The defendant owned land, which was bounded southerly on Eagle Street in East Boston and northerly by the harbor, and upon which it maintained a car barn. On the easterly line of the lot there was a high board fence, separating it from vacant and unfenced land called the Rice lot and running to a ridge near high water mark, where it turned and ran on the defendant’s land and on or nearly on the ridge with various turns to the barn. Running across theRice lot and just outside of the fence just described to the water, was a well defined path which with the defendant’s knowledge and acquiescence for many years had been used by the children and others in the neighborhood to get to the water and flats for play and other purposes. Right beside the path and between it and the fence and about nine feet from a turn in the path near the crest of the ridge, the defendant maintained a pole with wires upon it. The plaintiff was walking along the path toward the water at six o’clock in the afternoon on September 1, 1909, which was a wet day, when she was tripped by some wires in the path and fell against the pole, receiving an electric shock and burns. At about one o’clock on the same afternoon a boy had received a shock from the same pole and he and his playmates had told one Sullivan that the pole was charged. The boy testified that Sullivan stated to him .and his companions, “Oh, get out of here. What are you, fooling?” and that he replied, “No.” He described Sullivan’s duties as telling “the conductors which place the cars would go, where to put their cars.”</p> <p>An electrical engineer testified that the fact that the pole was charged indicated that the wires, which carried the voltage normally and which were insulated from the pole, had become defective in their insulation so that the current got out of the proper channel and got into the pole, either by the breaking down of the insulation or by the breaking of a wire carrying a current which might actually touch a pole, that if the contact through the earth was not good, then the pole would be charged; that under such conditions there would be more danger of getting a shock in wet ■ j weather; and that it was not difficult to ascertain whether the insulation was defective.</p> <p>At the close of the evidence the defendant asked the presiding judge to order a verdict for the defendant. The request was refused.</p> <p>The ninth ruling requested by the defendant and referred to in the opinion was as follows: “9. The wilful and wanton negligence of which the defendant must have been guilty to make it liable in this case is a degree of negligence for which in a case resulting in death a jury in a criminal case could find a verdict of manslaughter.”</p> <p>Material portions of the charge to the jury were as fat</p> <p>"One of the questions which arise in this case is as to whe this little girl had any rights upon the property where she was, she stood in any such relation to the defendant. . . that any duty was owed to her. If she was a trespasser there was no duty owed to her except the duty to refrain from wanton and reckless injury to her. If she was invited to go upon-the premises, then a different situation may exist, and it is possible that in this case you may have to consider just exactly what her position was.</p> <p>“The only possible ground upon which you can say that she was invited there, or was permitted to be there — there isn’t any evidence that she was invited to go there — whether or not she was permitted to go there depends simply upon this: the only evidence there is in this case which can justify you in finding that is that you find that the fence at the rear of that property was placed where it was so as to enable people to go behind it along the top of the bank; that there was a path there, and that the fence was put where it was, as counsel has just argued to you, in order to let the path be where it was and to allow people to use it. Now, is that the fact? Was the fence placed as near the edge of the bank as it could reasonably be placed and stand safely, or was it put where it was so that people might be at liberty to pass behind it, people whom the owner of the land anticipated would go over the land and would be permitted to go over the land?</p> <p>“If people were allowed to go there, if the fence was arranged in such a way as in substance to extend an invitation to go across that path, if the path existed there, then the person allowing it would be bound to use the care of a reasonably prudent and careful person to guard against injury to people there from any unexpected or new danger. . . .</p> <p>“Unless that is made out by a fair preponderance of the evidence, then this little girl was a trespasser; that is to say, she was a person that went there without any right; and in that case the only duty which was owed to her, as I have just stated to you, was that the defendant should not wilfully or wantonly injure her; so that what she would have to prove in that case if she were to recover is that there was a leaking of electricity into the pole there, that that caused her injury, and in addition to that she must show that the defendant had knowledge of that condition and that wanton and wilful recklessness to allow this condition to cinue to exist.</p> <p>Now, wanton and wilful recklessness means something more than just simple ordinary carelessness. It means something more than what is sometimes referred to as gross negligence. It means either an intentional causing of injury, about which there is no claim in this case, unless you are to take the argument of the plaintiff’s counsel that the defendant company arranged that wire, which has been testified to here, for the purpose of giving shocks to people that were trespassing upon their premises. If you think that is so, why, then you can say that there was an intentional causing of injury or such a disregard of the possibility that people would be injured that it indicated a lack of care whether any one was hurt or not, and under such circumstances that the person who was in that state of mind realized that injury was extremely probable unless precaution was taken.</p> <p>“If, for instance, gentlemen, I have under my control some extremely dangerous thing and know that a careless act on my part in the caring for it is likely to cause serious injury to other people, and I say to myself with regard to doing one thing or another in regard to it, ‘Well, let her go, I don’t care,’ and then somebody is hurt, you would be justified in saying that I did not care if somebody was hurt, that I had realized the possibility of their being hurt, and that rather than take the trouble to guard against it I had said that I did not care. It would indicate a carelessness on my part as to whether anybody was hurt or not, and I would then be wantonly careless and I would be held liable if somebody was hurt in consequence of my act.</p> <p>“But if, knowing I had such a thing under my control, having no reason to suppose that anybody was coming anywhere near it to get hurt, and that there was any serious danger of anybody being hurt, I should fail to do some particular thing which might make it additionally secure, you would not be justified in saying that I was wantonly careless, because there would be nothing to indicate that I had considered it probable that people would be hurt and that I was disregarding that probability. The essential thing in what the law calls wilful and wanton neglect is the recognition of the possibility of harm, and carelessness to that possibility.</p> <p>“The plaintiff would have to satisfy you in this case then, if e find no evidence that it was in consequence of an invitation inducement from the defendant, express or implied, that the plaintiff went upon the defendant’s land to the place where she was injured. There was evidence that the defendant had permitted the use of this path by children and others living in that neighborhood or coining thither, including the plaintiff, but nothing more than this. She had while she was on the defendant’s premises merely the rights of a licensee. The defendant, so far as appeared, had not laid out or wrought the path for use as a way by any one; and such cases as Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, and Holmes v. Drew, 151 Mass. 578, have no application. The fact, which the jury might infer from the evidence, that the defendant suffered its premises to be in a condition which was likely to attract people and did attract the plaintiff, does not constitute even an implied invitation. Wright v. Boston & Albany Railroad, 142 Mass. 296. Daniels v. New York & New England Railroad, 154 Mass. 349. Gay v. Essex Electric Street Railway, 159 Mass. 238, 241. Holbrook v. Aldrich, 168 Mass. 15, 16. Brayden v. New York, New Haven, & Hartford Railroad, 172 Mass. 225, 226. Griswold v. Boston & Maine Railroad, 183 Mass. 434. West v. Poor, 196 Mass. 183. Norris v. Hugh Nawn Contracting Co. 206 Mass. 58. The defendant owed therefore no other duty to the plaintiff than to abstain from any wilful, wanton or reckless conduct that was likely to do her injury. That is, the plaintiff had no right of action, unless she could show that her injury was due to the wilful, wanton or reckless misconduct or negligence of the defendant or of the defendant’s servants in charge of the place, or to actual force used against her by them. Stevens v. Nichols, 155 Mass. 472, 475. Byrnes v. Boston & Maine Railroad, 181 Mass. 322.</p> <p>But in our opinion there was evidence from which it could be found that the plaintiff’s injury was so caused. There was evidence which warranted a finding that Sullivan was a servant of the defendant whom it had put in charge of these premises, and that before the happening of the accident Sullivan had been warned that electricity was escaping.from the defendant’s wires into the pole. This was a source of concealed danger to children and others who, as the jury could find, were in the habit of going by the path past the pole with the knowledge and by the license of the she was a trespasser, that there was a knowledge of a dange\ condition existing upon the premises at the time, a probabik of extreme injury to anybody if that danger were not guarde® against, and a failure to guard against it. . . .</p> <p>“Even if you should believe that the pole or wires, or both, had been in a dangerous condition, by reason of electrical leakage, or otherwise, for some days prior to the accident, and that knowledge of that fact 'had been communicated to the witness Sullivan, such evidence would not be sufficient evidence of wilful and wanton conduct on the part of the defendant in not removing the danger prior to the accident, unless you are satisfied that the witness Sullivan was a person in charge of the premises and who in the ordinary course of his duty was charged with seeing that the premises were safe.”</p> <p>The jury found for the plaintiff in the sum of $10,000; and the defendant alleged exceptions.</p> <p>The bill of exceptions, exclusive of annexed exhibits, filled sixty-three pages of the printed record. Thirty-nine pages were occupied by testimony of fifteen witnesses for the plaintiff and twelve witnesses for the defendant, set out almost entirely in question and answer form.</p>

<p>Contract, Construction, Performance and breach. Joint Tortfeasors. Reference and Referee.</p> <p>In a contract in writing relating to the operation of cars of one street railway company upon the tracks and by the servants of a second street railway company, in which it was provided that the second company should be liable ultimately for all damage caused by its negligence or that of its servants, provided that such damage was not caused by faulty construction or lack of repair of the cars of the first company, the second company further agreed to indemnify the first company for all damages suffered by it or for which it should be held responsible and for which the second company thus had made itself liable, and the first company agreed to indemnify the second company for all damages for which it should be held responsible, where such “damage has been occasioned in a manner to render . . . [the first company] . . . liable as provided herein.” By reason of the combined negligence of the first company in suffering an axle of one of its cars to be out of repair, and of the servants of the second company in running the car at an excessive rate of speed, several persons received injuries for which they made claims against the second company. The second company settled such claims. Held, that the second company had no right under the contract to compel the first company to pay to it any part of what it had so paid in settlement, because the agreement dealt only with damage which was due to the fault of one company without fault on the part of the other.</p> <p>Where claims for damages for personal injuries are made upon one of two street railway companies whose joint negligence caused the injuries and such company settles the claims, it has no right of action in tort against the other company to compel it to pay any part of the money it paid in such settlements.</p> <p>A contract in writing between two street railway companies relating to the running of cars of the first company upon the tracks and by the servants of the second company, after providing in substance that the first company should be liable ultimately for damages resulting from faulty construction or want of repair of its cars and that the second company should be liable ultimately for all damage resulting from negligence of its servants, further provided in substance that, if the companies were unable to agree as to which company was liable under the contract for any injury or damages, a claim for which had been settled and paid out of court, the controversy should be determined by an attorney at law to be agreed upon by the two companies, who should have power to apportion the liability between the two companies in such a way as he should deem just and equitable and whose determination should be conclusive upon both companies. The second company paid money in procuring settlements, upon terms which the first company approved, of certain claims made upon it for personal injuries and damages caused by the combined negligence of the first company in suffering one of its cars to be out of repair and of servants of the second company in running the car at an excessive speed, and thereafter the first company refused to proceed before an attorney at law chosen by the companies in accordance with the provisions of the contract, and the attorney at law did not make any apportionment of liability between the companies. Held, that the second company could not maintain an action at law upon the contract to compel the first company to pay any portion of the sums so paid by it before the matter was referred to the attorney and determined by him, because to permit the maintenance of such an action would be to make a new contract for the parties and to substitute the court for the referee selected and agreed upon by them.</p>

<p>Bill in equity, filed in the Superior Court on July 19, 1912, seeking, among other things, to have the defendants ordered to perform specifically their agreement under a certain lease and contract in writing by erecting a building upon the leased premises, and by conveying in fee a certain right of way, and seeking also to have the defendants enjoined from maintaining a stable on the leased premises, and for damages.</p> <p>By a rescript of this court issued on January 9, 1914, in accordance with a decision reported in 216 Mass. 374, it was ordered that the case be sent to a master to assess damages. The case accordingly was referred to Burton Payne Gray, Esquire, as master, to hear the parties and assess the damages in accordance with the opinion of this court. The master found that the erection of such a brick building as was required by the contract, without plastered walls, without a roof, and with a wooden floor, which would be suitable for carrying on the defendants’ business and should be reasonably satisfactory to the plaintiff, would be $4,020.05; and, among other things, found that the defendants were liable to the plaintiff for rent at the rate of $2,500 a year from June 1, 1912, as reserved in the lease, with accrued interest on each monthly instalment as it became due under the lease.</p> <p>The plaintiff filed the following exceptions to the master’s report:</p> <p>“ 1. To his ruling that the language of the lease and agreement calls for a brick building to be completed without a roof.</p> <p>“2. To his ruling that the language of the lease and agreement calls for a brick building to be completed without plastered walls.”</p> <p>The defendants filed the following exceptions to the master’s report:</p> <p>“ 1. To the ruling or conclusion contained in the first paragraph of his findings, to the effect that there has been a breach of the contract on the part of the defendants, and to his failure to rule in that respect that whatever breach may have occurred was that of the plaintiff.</p> <p>“2. To his ruling that the plaintiff is entitled to recover substantial damages.</p> <p>“ 3. To his ruling that the measure of damages is such sum of money as it would have cost to erect the brick building in question on or before June 1, 1912, as provided in the lease and agreement.</p> <p>“4. To his refusal to rule that if the cost of the building is the measure of damages, it should be reduced by such sum as would represent reasonable interest on the amount of the award from the date of payment to the termination of the lease.</p> <p>“5. To his ruling that the language of the lease and agreement calls for a wooden floor in the building and for suitable finish about the door and windows.</p> <p>“6. To his exclusion of the offer of proof made by the defendants as to the bid for erecting the building for the sum of $3,007.</p> <p>“7. To his refusal to find and rule that this bid was the limit of the defendants’ liability for damages, so far as the cost of the building is concerned.</p> <p>“8. To the method by which the master found, as stated in his report, that it would cost the sum of $4,020.05 to erect the building in question.</p> <p>“9. To his admission of the letter of January 26, 1914.</p> <p>“ 10. To his ruling that the defendants are liable for rent at the rate of $2,500 per annum from June 1, 1912, as reserved in the lease, with accrued interest on each monthly instalment as it became due under the lease.</p> <p>“11. To his ruling that the defendants are liable for rent from June 1, 1912, at the rate of $1,000 per year, and to the method by which he arrived at this figure.</p> <p>“ 12. To his ruling that, if the defendants are liable for rent only at the rate of $700 per year, they are also liable for any interest thereon.”</p> <p>The case came on to be heard before Jenney, J., and, at the request of the parties, was reserved by him for determination by this court upon the master’s report on the assessment of damages and the exceptions of both parties thereto, together with the record of the previous appeal.</p>

<p>Tort, under the employer’s liability act and at common law, by a workman for personal injuries sustained on January 31, 1910, when the plaintiff was in the employ of the defendant, who was engaged as a contractor in constructing a school building in the town of Stoneham. Writ dated April 16, 1910.</p> <p>In the Superior Court the case first was tried before King, J. The jury returned a verdict for the plaintiff in the sum of $2,500; and the defendant alleged exceptions, which were sustained by this court in a decision reported in 214 Mass. 221.</p> <p>There was a new trial of the case before Fox, J. At the close of the plaintiff’s evidence, which differed from that at the first trial only in the presentation of evidence in regard to an alleged custom as described in the opinion, the case was submitted to the jury under an agreement of counsel that on the coming in of the jury the judge might order a verdict for the defendant and report the case upon the stipulation that, if this court should hold that upon the competent evidence in the case the jury were warranted in finding for the plaintiff, judgment was to be entered for the plaintiff for the amount of damages found by the jury with interest from the date of the finding; otherwise, judgment was to be entered for the defendant.</p> <p>The jury returned a verdict for the plaintiff in the sum of $4,000, whereupon the judge ordered a verdict for the defendant and reported the case for determination by this court with the stipulation stated above.</p>

<p>Negligence, In use of highway, Street railway, Causing death. Evidence, Weight. Witness, Contradictory statements.</p> <p>If a traveller on foot starting to cross a city street thirty-five feet wide from curb to curb, on which are parallel street railway tracks, looks when he is five or six feet from the curb and sees a street railway car approaching, which is about one hundred and seventy-five feet away and which is running at very excessive speed, although the traveller does not appreciate this, and if, after going about fifteen feet farther, when he has seven feet more to go to get to a place of safety, he looks again and sees the car from thirty-five to ninety feet away and keeps on, not realizing until he gets between the third and fourth rail the excessive speed at which the car is moving, and then, realizing it, darts forward and is struck by the car and killed when he is on the farther rail and within two feet of a place of safety, in an action for causing his death these facts are affirmative evidence of his due care under the requirement of St. 1907, c. 392.</p> <p>Where the only eyewitness of an accident resulting in death, on his direct, on his cross and on his redirect examination, makes contradictory statements in attempting to describe the circumstances attending the accident, it is for the jury to weigh his conflicting testimony and decide what the facts were. Following Tierney v. Boston Elevated Bmlway, 216 Mass. 283.</p>

<p>Practice, Civil, Exceptions.</p> <p>Where, upon an exception to the refusal of a presiding judge to make a ruling as to the legal effect of certain facts if they should be found by-the jury, the evidence reported and described in the bill of exceptions does not warrant a finding of these facts by the jury, the exception must be overruled, because it does not appear that there was any occasion for the ruling requested.</p>

<p>Contract, Construction. Power. Estoppel. Bankruptcy, Trustee. Words, “Heirs at law.”</p> <p>If a beneficiary for life under a trust created by will, who has a power of testamentary appointment over the trust fund which in default of such appointment will go to his heirs at law, declares, in order to procure a loan of money, that he has made a will by which he has appointed the trust fund tó others and that such an appointment will make the appointed property assets for the payment of his creditors, this is not an agreement to make an appointment in favor of the lender of the money nor an agreement not to die intestate.</p> <p>’ If a beneficiary for life under a trust created by will, who has a power of testamentary appointment over the trust fund which in default of such appointment is to go to his heirs at law, declares, in order to procure a loan of money, that he has made a will by which he has appointed the trust fund to others and that such an appointment will make the appointed property assets for the payment of his creditors, and afterwards dies intestate, this statement of the beneficiary for life can create no estoppel that will bind his heirs at law, who take the trust fund not from him but from the original testator; and, even if one of the heirs at law joined in making the statement to induce the loan, he would be estopped to deny merely that a will had been made and existed at the time of the statement and would not be precluded from showing that a will then in existence afterwards was revoked.</p> <p>Under the bankruptcy act of 1898 as amended by U. S. St. 1910, c. 412, § 8, whatever the powers of a trustee in bankruptcy over the estate of the bankrupt may be, such a trustee cannot make an appointment under a power which was to be exercised by the bankrupt only by will, even when the bankrupt is alive, much less after he is dead.</p>

<p>Two actions of tort, the first for assault and battery alleged to have been committed upon the plaintiff by one William E. Durand, an agent of the defendant, and the second by the husband of the plaintiff in the first action for consequential damages. Writs dated respectively April 13, 1911, and September 21, 1912.</p> <p>In the Superior Court the cases were tried together before Hitchcock, J. The material facts which the evidence tended to show are stated in the opinion. At the close of the evidence the defendant asked the judge to rule as follows:</p> <p>"1. On the evidence the verdict should be for the defendant.”</p> <p>“9. Under the terms of the contract, signed by the plaintiff, the defendant had the right to cancel the contract any time prior to the acceptance of a payment by an authorized collector. There is no evidence upon which it may be found that Durand was an authorized collector, his duty being merely to sell goods.</p> <p>“ 10. Under the contract or lease, the defendant had the right to retake the goods upon tendering the amount of the deposit which Mrs. Drake had paid, and was not required to give the notice provided for by R. L. c. 198, § 13, relative to notice, statement and demand.”</p> <p>The judge refused to make these rulings and submitted the cases to the jury. The jury found for the plaintiff in the first action in the sum of $1,000, and for the plaintiff in the second action in the sum of $50; and the defendant alleged exceptions.</p>

<p>Equity Jurisdiction, To relieve from results of fraud. Fraud. Equity Pleading and Practice, Decree.</p> <p>In a suit in equity to compel the redelivery of a mortgage note, which was signed by a person in Russia and was owned by the plaintiff and was alleged to have been procured from the plaintiff by the defendant through fraud, it appeared that the defendant had lent to the plaintiff $500 for which the plaintiff had given him a note secured by a mortgage of real estate in Dedham, that, being in need of further funds, the plaintiff again had applied to the defendant for further advances, that the defendant, without making a definite promise, had encouraged the plaintiff to think that the advances would be made and in that connection had inducedtfhe plaintiff to deliver to him the Russian mortgage note. Later, because of the intervention of others, the defendant agreed to redeliver the Russian mortgage note and to make the further advances if the plaintiff would give him a new mortgage for $900 and a release of all demands, that the plaintiff gave the new mortgage and the mortgage for $500 was discharged, but that through fraud of the defendant the plaintiff was induced to sign and deliver to him an assignment of the Russian mortgage note and that the defendant then refused to make the promised advances or to return the Russian mortgage note to the plaintiff. While this suit was pending the $900 mortgage was foreclosed by a sale without notice to the plaintiff. A master who heard the case found that the amount due on that “ mortgage at the time of said foreclosure was $675.” A final decree was made directing the cancellation of the assignment of the Russian mortgage note and the redelivery of that note to the plaintiff. The defendant appealed, contending that, because of the quoted finding of the master, the redelivery should not be ordered without a payment by the plaintiff of $675. Held, that the appeal was without merit, because the Russian mortgage note was not delivered to the defendant as security.</p> <p>In the same suit, the final decree stated "that the mortgage and note for $900 . . . was obtained from the plaintiff by fraud exercised by the defendant upon the plaintiff,” but did not order any relief as to that note and mortgage. The plaintiff did not, and the defendant did appeal, and contended that so much of the decree should be stricken out. Held, that the decree should be modified by striking out the finding, because it was irrelevant to any relief given.</p> <p>A final decree in a suit in equity should not contain findings of fact which are not relevant to relief given by the decree.</p>

<p>Negligence, Street railway.</p> <p>At the trial of an action against a street railway company by the driver of a swill cart to recover for personal injuries caused by the cart being run into from behind by a street car of the defendant, there was evidence tending to show that the plaintiff was passing another vehicle standing next to the curb in such a position that in passing it the plaintiff’s left front wheel came upon the defendant’s track, that, before turning to pass the other vehicle, the plaintiff looked over his shoulder and saw no car for a distance of seventy-five or eighty feet, and listened, that no warning whistle was blown nor gong nor bell sounded, and that the car, approaching at the rate of twenty miles an hour, struck the left front wheel of the plaintiff’s cart and threw him to the ground. Held, that the question of the plaintiff’s due care was for the jury.</p>

<p>Two actions of tort, the first for personal injuries caused by the plaintiff being thrown to the ground by the starting of a street car of the defendant as she was in the act of entering it. The second action was by the husband of the plaintiff in the first for consequential damages. Writs dated June 20, 1911.</p> <p>The allegations of negligence in the declaration were that, while the plaintiff was in the act of boarding the car, “the agents, employees or servants of said defendant so carelessly and negligently managed said electric that it suddenly started up without notice or warning, or sufficient notice or warning to the plaintiff, and threw her with great violence upon the ground and road, and dragged her quite a distance.”</p> <p>The cases were tried together before Stevens, J. There was evidence that the defendant’s car was very crowded. Other material facts which the plaintiffs’ evidence tended to show are stated in the opinion. At the close of the evidence, the judge, subject to exceptions by the defendant, refused to rule that upon all the evidence the plaintiffs were not entitled to recover.</p> <p>The judge in his charge instructed the jury as follows: “The road in this case, on the evidence, is not to be held responsible because the conductor rang the bell and started the car, because there isn’t any evidence that he did. It may have been rung by a passenger, and it may be that you will say that he was negligent in not having exercised such supervision that he would see that no passenger should start the car by ringing the bell.” The judge then read from the opinion of this court in Nichols v. Lynn & Boston Railroad, 168 Mass. 528 at page 530, as follows: "The plaintiff, it would seem, was in the exercise of due care, and no suggestion is made to us to the contrary: and the jury might have found that there was lack of due precautions, under the circumstances, to prevent the starting of the car through an unauthorized act of a passenger in ringing the bell. While the defendant was not bound to adopt all possible precautions to protect its passengers from injury in leaving its cars, it was bound to use the utmost care consistent with the nature and extent of its business to guard against all dangers which it could reasonably anticipate; and if the defendant failed in this duty, it is responsible for the consequences of its neglect. ... It was competent for the jury, upon the evidence, to find that the defendant failed in its duty in allowing the car to be started up as it was, or in not taking greater precautions to prevent its being so started up, before the plaintiff had time to get safely off.”</p> <p>The jury found for the plaintiff in the first case in the sum of $2,800, and for the plaintiff in the second case in the sum of $300; and the defendant alleged exceptions.</p>

<p> Bankruptcy. Judgment. Merger. </p> <p>It is no defense to an action of contract upon an account annexed that the plaintiff’s claim previously had been allowed by a referee in bankruptcy in proceedings under the bankruptcy act of 1898 in which no dividend was paid on the bankrupt’s estate and the bankrupt was refused a discharge.</p>

<p>Municipal Court of the City of Boston, Appellate Division: report. Practice, Civil. Contract, In writing.</p> <p>In an action of contract in the Municipal Court of the City of Boston by a salesman against his employer for commissions on sales made in a certain territory by others than the plaintiff, it appeared that the defendant had written a letter to the plaintiff stating that he would pay the plaintiff, besides a salary, “1 % commission on all book accounts.” The plaintiff’s evidence tended to show that the quoted words included the sales on which he was claiming commissions. The defendant asked the trial judge to rule that the quoted words “do not, as a matter of law, mean one per cent commission on all book accounts which appear in the defendant’s books regardless of the question by whom the sales were made or in what territory.” The judge, in reporting the case to the Appellate Division after finding for the plaintiff, first stated his refusal of the ruling asked for, then stated as his construction of the defendant’s letter “in connection with the other evidence in the case,” that it entitled the plaintiff to a commission on “the entire output of the defendant’s factory” and not merely on all sales made by the plaintiff, and then stated, "The defendant being aggrieved by my ruling as aforesaid has requested this report for determination by the Appellate Division.” Held, that the judge intended to report the question of the correctness both of the ruling he gave and of his refusal to give the ruling asked for; and that, because it was apparent that he refused to construe the ambiguous words of the letter apart from evidence explaining their meaning and did construe them in the light of that evidence, his refusal to give the ruling asked for and the ruling he gave both were correct.</p>

<p>Equity Pleading and Practice, Decree, Appeal, Exceptions to rulings of judge, Costs. Equity Jurisdiction, To redeem from execution sale. Execution. Interest.</p> <p>After a hearing of a suit in equity at which one of the parties saves exceptions to rulings of the judge, the judge has no power to enter a final decree until the exceptions are disposed of. If the judge attempts to enter such a decree, it will be treated in the consideration of the exceptions merely as an order for a decree, and an appeal therefrom will be dismissed.</p> <p>Where the record accompanying a bill of exceptions in a suit in equity contains no copy of a replication, and the bill of exceptions does not state that the suit was heard on the bill and answer, and a memorandum for a final decree states that the suit was heard “ upon bill and answer and was submitted on evidence and argument by counsel,” the case will be treated by this court as one decided upon evidence introduced by the parties.</p> <p>A ruling by the judge who heard a suit in equity to redeem from an execution sale certain “wild and uncultivated land, given over at the time of the purchase by the defendant to weeds, beach grass and bushes,” that sums paid for “labor in cutting down silver leaf poplar bushes, and clearing [the] land of dead leaves and bushes from former cuttings” were "reasonable expenses incurred for repairs and improvements,” which, among other sums, the provisions of R. L. c. 178, § 33, require that the plaintiff should tender to the defendant as a condition precedent to redemption, cannot be said to have been wrong as a matter of law, especially in the absence of a report of the evidence upon which it was made.</p> <p>In a suit in equity under R. L. c. 178, § 33, to redeem certain land from an execution sale, the defendant is entitled to be credited, in the computation of the sum which the plaintiff must pay in order to redeem, with interest on sums paid by him for taxes while in possession of the land and reasonable expenses incurred for repairs and improvements.</p> <p>In a suit in equity to redeem from an execution sale, the matter of costs is left under R. L. c. 178, § 41, to the discretion of the presiding judge except in the cases specified in that section; and therefore an exception by a plaintiff in such a suit to the awarding of costs to the defendant must be overruled where the evidence upon which the award was made is not before this court.</p> <p>"Where, in a suit in equity for the redemption of certain land from an execution sale, the defendant is awarded costs, it is proper to require that such costs be deposited with the clerk of the court for the use of the defendant.</p> <p>A decree in a suit in equity awarding costs should state the amount of the costs.</p> <p>In a suit in equity for the redemption of land from an execution sale, where after a hearing the amount to be paid to the defendant for redemption under R. L. c. 178, § 33, is determined and costs are awarded to the defendant, a decree should order that, if such amount and costs are not paid by the plaintiff to the defendant within a certain time, a final decree stating that fact and dismissing the suit with costs shall be entered.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 14, 1913, and afterwards amended, by the trustees under the will and codicil of John Simmons late of Boston, against Simmons Female College, a Massachusetts corporation. The material allegations of the bill were in substance as follows:</p> <p>The will of John Simmons was allowed in 1870. The fourth article of the will gave a “granite building” at the corner of Congress Street and Water Street, and a “granite-front store” on Franklin Street and Hawley Street, together with the land under and appurtenant to them, to trustees, the plaintiffs’ predecessors, in trust to pay the income “or so much thereof as said Trustees shall see fit” to the testator’s daughter Alvina White, “and so much of said remainder as shall not be paid, applied or used,” the trustees were directed to hold subject to the provisions of article six of the will, which established a trust in certain property, the income of which was to be paid to the testator’s granddaughter Anna White (afterwards Mrs. Henry S. Rowe) and her issue. On the death of Alvina the trustees were directed to add the property described in article four, exclusive of the accumulation of income, which was to be subject to the provisions of article six, to a fund established by article sixteen for the foundation of Simmons Female College. The trustees were given no power to mortgage real estate.</p> <p>The buildings described in article four were destroyed in the great Boston fire in 1872. At a special session of the Legislature, St. 1872, c. 370, was enacted, repealing St. 1869, c. 451, and providing in § 1 that “Probate courts, having jurisdiction under the provisions of this act, after notice to all persons interested, and hearing thereon, may authorize any trustee or trustees appointed under any will, trust, deed or indenture, and having the control or management of any real estate, to mortgage the same for the purpose of paying the sums assessed thereon for betterments, or the expense of repairs and improvements thereon made necessary by such betterments, or by the lawful taking of such estate, or any part thereof, by any city or town, or for the purpose of paying the expense of erecting, altering, completing, repairing or improving any building on such estate, when it shall appear to the court to be for the interest of such estate; and the interest on such mortgage, and any portion of the principal which the court may order, shall be paid out of the income derived from the estate mortgaged as herein provided.”</p> <p>Section 2 provided that “the petition shall set forth a description of the estate to be mortgaged, the amount necessary to be raised, and the purposes for which the same is to be used, and shall be made to the probate court for the county where the will under which such trustee or trustees were appointed was proved, in case the trust was created by will, or in the county where the trust estate, or any part thereof is located, in case such trust was created by deed or indenture; and the decree of the court thereon shall fix the amount for which the mortgage may be given, and the rate of interest which may be paid thereon.”</p> <p>A third section related to the form of the mortgage, and to the giving of a bond by the trustees.</p> <p>The bill alleged that, under the foregoing statute, predecessors of the plaintiffs “on June 4,1873, filed their first petition "for leave to mortgage real estate for the purpose of erecting new buildings; and thereafter they filed numerous other petitions for the same purpose, and for the purpose of paying off existing mortgages; and in all these petitions the trustees prayed that the court fix the amount of principal to be paid out of income to be derived from the mortgaged estate. . . . The petitions did not set forth the peculiar provisions of the trusts established by the fourth and sixth articles of the will nor call attention in any way to the question as to how the payment of the principal of the mortgage out of income to be derived from the mortgaged estate would affect the rights of the several beneficiaries. No notice of the said petitions was given, except general notice by publication; no guardian ad litem was appointed to represent the interest of the minor or unborn children of Mrs. Rowe; and no persons other than the trustees were actually represented in or made parties to the proceedings upon any of said petitions.” The Probate Court, by decrees authorizing mortgages, “directed that twenty-five per cent of the net rents of the mortgaged estate be reserved for the payment of principal, subject to the further order of the court. The trustees accordingly did reserve twenty-five per cent of the net rents remaining after payment of mortgage interest, taxes, expenses of repairs and of management during the lifetime of Alvina White” for a number of years. Mrs. White died in 1886.</p> <p>The defendant was incorporated in 1899, and the trustees shortly afterwards conveyed to it the fund which had accumulated in their hands. The real estate at the corner of Water Street and Congress Street had been mortgaged by them in 1874, under the decree of the Probate Court, for $355,000. Payments, entered as from “cash” in their books, had been made from time to time, until, at the time of the conveyance to the defendant, the mortgage amounted to $150,000. Upon the Franklin Street estate the original mortgage was $110,000, while at the time of the transfer to the defendant it was $97,550.53.</p> <p>Further allegations of the bill were:</p> <p>“These orders of the Probate Court were not intended to supersede or vary the provisions of the will, nor could they have such an effect. The payments upon principal do not correspond in amount with the amounts reserved under these orders of the Probate Court; all these reservations were directed to be made ‘subject to the further order’ of the court and no ‘further orders’ were made by the Probate Court; the payments of principal do not appear to have been made from income reserved by order of the Probate Court, and such payments should not be charged against income reserved from the trust established for the benefit of Mrs. White, because the will directs that such income, if not paid over to her, shall be added to the trust estate established by the sixth article for the benefit of Anna Rowe and her children.</p> <p>“The trustees preceding the plaintiffs, by their books and accounts, have treated the amount of these reservations as if invested in the buildings; and by transferring these buildings to the Simmons Female College, together with the other estate, which the trustees had in their hands accumulating for the benefit of Simmons Female College, without allowance for these investments, the college has been unjustly enriched to the extent of the amounts so reserved from the net rentals and interest thereon; such accumulations should have been separately invested, and added to the trust under the sixth article of the will.”</p> <p>The defendant demurred to the bill for want of equity and on other grounds. The case was reserved by Hammond, J., for determination by the full court.</p>

<p>Workmen’s Compensation Act. Words, “Incapacity for work.”</p> <p>Under St. 1911, c. 751, Part II, § 9, providing for the payment to an injured employee of a weekly compensation “while the incapacity for work resulting from the injury is total,” the Industrial Accident Board have a right to find that an employee, who sustained an injury requiring the amputation of his right arm, was totally incapacitated for work until the day when he first was able to obtain work that a one-armed man could do, although he was capable of doing such work about five months before he succeeded in procuring it.</p>

<p>Tort for personal injuries, received while the plaintiff was in the employ of the defendant as a motorman and caused by a collision of a street car which the plaintiff was operating with a car which was standing in the Atlantic Avenue station of the East Boston tunnel. Writ dated July 15, 1907.</p> <p>In the Superior Court the case was tried before Dana, J. Material facts relating to the pleadings, the evidence and the instructions to the jury are stated in the opinion.</p> <p>The witness Gerring, mentioned in the opinion, it appeared, had been a conductor in the defendant’s employ in charge of the car on which the plaintiff was injured on its trip immediately preceding the trip upon which the collision occurred. The questions to Gerring as to his previous statement and the testimony of Williams, mentioned in the opinion, on the same subject, were admitted in evidence subject to the defendant’s exceptions.</p> <p>The jury found for the plaintiff in the sum of $5,000, which under an order of the judge afterwards was reduced to $4,000. The defendant alleged exceptions.</p> <p>The bill of exceptions occupied one hundred and ninety-four pages of the printed record, of which one hundred and seventy-two pages contained a statement of the evidence, at least one hundred and thirty pages being in the form of questions and answers. ■</p>

<p>Contract for compensation for having procured the making of a certain agreement between certain persons and the defendant, the first and fourth counts of the declaration, which alone are material, being described in the opinion. Writ dated January 17, 1911.</p> <p>In the Superior Court the case was tried before Chase, J. The material facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to rule that the plaintiff could not recover on the first, on the fourth or on any count of the declaration, and also asked for the following rulings:</p> <p>“9. In determining whether Evans, Wallace and Plant came to an agreement at their joint conference, the conference should be treated as a whole.</p> <p>“10. The evidence does not warrant a finding that Wallace and Plant ever came to an agreement for a loan.</p> <p>“11. If Evans and Wallace would not invest the money until they satisfied themselves that the proposition was a safe one, then they were not men able, ready and willing to furnish the money before they had so satisfied themselves, and if they did not so satisfy themselves, the plaintiff cannot recover on the first, second, third or fourth count of the declaration.</p> <p>“12. If the proposition, if any, of Evans and Wallace was dependent on an investigation, then they were not men ready, able and willing to furnish money before such investigation was made, and if so, the plaintiff cannot recover on the first ... or fourth count of the declaration.”</p> <p>“14. The evidence does not warrant a finding that Wallace and Evans themselves were financially able and ready to furnish about $1,500,000 before October 1, 1910, and sufficient money thereafter for working capital estimated at about $1,000,000 for this shoe machinery business.</p> <p>“15. The evidence does not warrant a finding that Wallace and Evans were ready, able and willing to agree themselves to furnish about $1,500,000 before October 1, 1910, and sufficient money thereafter for working capital estimated at about $1,000,-000 for this shoe machinery business.</p> <p>“16. If Wallace and Evans did not agree to furnish the entire money themselves, but were merely to agree on the terms on which they intended to form a syndicate, to be made up of themselves and such others as could be found to agree to furnish the money, and this syndicate was ever formed, then this did not constitute finding men ready, able and willing to furnish the money, in such a sense as would of itself entitle the plaintiff to compensation.”</p> <p>“20. The evidence does not warrant the conclusion that Plant did not intend in good faith to avail hinself of such loan as might be obtained through Hutchinson.”</p> <p>“22. The evidence does not warrant the conclusion that Wallace or Evans ever actually formed the syndicate.</p> <p>“23. If Plant and Hutchinson made a definite agreement that Plant would pay Hutchinson $50,000 in cash if the trade went through and double that amount if the business was sold before January 1, 1911, and no other agreement as to compensation was made either expressly or by implication, then the plaintiff cannot recover on the first ... or fourth .counts of the declaration.”</p> <p>The judge refused to make these rulings except so far as some of them were covered by his charge, and submitted the case to the jury upon the first and fourth counts of the declaration with other instructions, which in part are described in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $109,168; and the defendant alleged exceptions to the refusal of the rulings requested and to certain rulings as to the admission and exclusion of evidence which are referred to in the opinion.</p>

<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 Wait, J. The material facts relating to the question raised by the appeal and the finding of the Industrial Accident Board thereon are stated in the opinion. The judge made a decree awarding to Nora Nickerson as the dependent widow of Lester Nickerson, the deceased employee, a weekly compensation of $6.50 for a period of three hundred weeks from August 1, 1912. The insurer appealed, contending that the injury which resulted in the death of the employee was incurred by reason of his serious and wilful misconduct and that therefore under St. 1911, c. 751, Part II, § 2, his dependent widow could receive no compensation.</p>

<p>Bill in equity, filed in the Superior Court on February 11, 1909, and there amended and removed to this court, where it further was amended several times, seeking to have" an agreement of sale between the town of Revere and the Revere Water Company (hereinafter called “the company”) and the sale and conveyance made in accordance therewith declared void on the ground of fraud, and for certain other relief hereinafter described.</p> <p>The suit was referred to Boyd B. Jones, Esquire, as master. In his report, filed on March 29, 1913, he stated the purposes of the suit when it was heard by him to be as follows: “The town seeks by this suit to have the court annul a contract of sale and purchase between it and the company, dated April 15, 1904, as modified by an agreement dated December 31 of the same year, a deed from the company to it of the waterworks in Revere and other property of the company, and a vote of the town accepting St. 1904, c. 457, authorizing the town to acquire the property thus conveyed and to issue bonds for the purpose of paying for it. The town also asks that bonds to the amount of $360,000, received by the company under the contract of sale and purchase, should be returned to the town by the company. ... It was claimed by the town at the hearing that the price paid for the property was from $150,000 to $200,000 in excess of its fair value, and that the agreement to purchase, and the payment of that price, was obtained by the company because of certain false representations made by the company and its agents.”</p> <p>The transactions which formed the subject matter of the suit were as follows:</p> <p>On May 3,1904, the town of Revere, acting under the authority of St. 1882, c. 142, § 7, the charter of the defendant, adopted a contract of purchase of the company’s plant and property, dated April 15, 1904, and to be performed January 1, 1905, at the price of $350,000 in addition to the value of stock and tools on hand and new construction, payable in the bonds of the town. One provision of this contract was that after its adoption the company should undertake no new construction without the committee’s consent in writing.</p> <p>On petition of the town St. 1904, c. 457, was enacted, authorizing the town to supply itself with water, § 11 forbidding it to do so until it should have purchased the company’s property (except its property in Winthrop) on the terms of the company’s charter, and § 5 authorizing the issue of bonds not exceeding $400,000 for the pinchase. The act, being subject to acceptance by the town, was accepted at a meeting held on October 24, 1904, and at the same meeting the town voted to “purchase the property, rights and privileges of the Revere Water Company, excepting the property situated in the town of Winthrop, in accordance with the provisions of chapter 457 of the acts of 1904.”</p> <p>On December 29, 1904, the town, not being ready to complete the purchase, instructed its committee to procure and execute with the company an extension of “the time for completion of the purchase of the company’s property under the agreement dated April 15 and the votes of the town of May 3 and October 24, 1904.” Under this vote a contract was executed on December 31, extending the time for completion of the purchase to April 1, 1905, the company to operate the plant and have the earnings until that time. At' an adjournment of this meeting, January 2, 1905, the contract of extension was presented, and the town voted to issue $360,000 bonds, to be sold and delivered to the company “in payment for its property under and according to the agreement of purchase dated April 15, as extended by agreement dated December 31, and the votes of the town of May 3 and October 24, 1904, so far as necessary therefor.”</p> <p>On April 1, 1905, the purchase was carried into full effect in exact accordance with the contract of April 15, 1904, and the foregoing votes, the company deeding the property to the town and the town paying with its bonds the purchase price of $350,000 plus $2,358.98, the value of stock and tools on hand, and $2,560.09, the value of new construction, as ascertained by the town’s engineer in accordance with the contract, the town subsequently, after collection of the water rates in July, accounting to the company for the earnings to April 1. The town took and thereafter retained possession and management of the property.</p> <p>As to the allegations of fraud and false representations in the amended bill, the master found as follows:</p> <p>“I find and report that the town committee referred to was not selected or appointed by Burnham [then a director, superintendent of, and stockholder in the company,]; that it was made up of disinterested persons from various walks of life, including members of the legal and medical professions, that it was not actuated by motives other than that of promoting the welfare of the town; that before arriving at any conclusion or making any report to the town it had become satisfied that any judgment it might form upon its independent and unassisted investigation would not warrant municipal action upon a matter of so much importance, and had employed a hydraulic engineer of good standing, one Freeman C. Coffin, upon whose recommendations and advice it relied and acted in making its own reports to the town. It was admitted by the town that the engineer acted in good faith, and not in collusion with the company.</p> <p>“I also find that in dealing with the legal questions which arose the committee acted upon the advice of reputable and competent lawyers, of whom one was attorney for the town and the other was a member of the committee. I further find that these lawyers were in no respect under the influence or control of the company, and that, in advising the committee and in representing it and the town, they were actuated only by a desire to guard the town’s interests.</p> <p>. “I find that neither the company nor any person sustaining the relation of officer, stockholder, agent, or otherwise to the company, made any representation to the town, or to its committee or to any one representing it, as to either the condition or adequacy of the water system or property sold to the town. On the contrary, it affirmatively appeared from the evidence introduced by the town, and I find, that the committee adopted the views of its engineer upon these matters and that he formed his conclusions as to the adequacy of the system from the length and dimensions of the water pipes and such examination of the pipes and system as he deemed it necessary to make. The dimensions of the pipes and their ages he obtained from the records of the company and from Mr. Burnham. . . . The information which the engineer thus obtained was correct. . . .</p> <p>“Neither the engineer, the committee, nor the town acted or were influenced by any representation made by the defendant or any one representing it as to the value of the whole or any part of the system purchased by the town. The committee relied on the valuations made by the engineer. . . .</p> <p>“I further find and report that the earnings and expenses of the company were not falsely stated by it, or any one representing it, but that, on the contrary, the company’s earnings and expenses were fully and correctly disclosed to the engineer, and appear in his confidential report to the committee. . . .</p> <p>“I find on all the evidence in the case, that the town in making the purchase relied wholly upon the advice and recommendations of its committee and an engineer employed by that committee; that the committee and engineer acted honestly, and that neither the company nor any one representing it or interested in it made any false representation or were guilty of any fraud or concealment, and further that Burnham did not occupy, and was not understood by the town or any one representing it to occupy, any relation of trust and confidence to the town.”</p> <p>The master also found that “the valuation of the town of Revere on May 1, 1904, was $12,197,225; and that on May 1, 1905, it was $12,263,200. On April 15, 1904, the town indebtedness was $295,750; on May 3, 1904, it was $430,750, and on October 24 the town indebtedness was $452,775.”</p> <p>During the hearings before the master on February 3, 1913, the plaintiff filed a motion to amend the prayers of the bill. This motion was allowed by a decree dated October 21, 1913, after the master’s report was filed. As thus amended, the prayers of the bill were (1) “that each and every one of the alleged contracts between said company and said town or said committee purporting to fix the price to be paid by said town to said company, and to fix the conditions of said sale, purchase, and transfer, be declared null and void; (2) that the alleged deed of conveyance from said company to said town be cancelled, and that said company be ordered and decreed to execute and deliver forthwith to said town a proper and sufficient deed for the property and rights purchased by said town; (3) that said company be ordered to account to said town for the town of Revere water-loan bonds now in its' possession or control, and for the par value of any of said bonds which have been sold, transferred, or otherwise disposed of by said company, and for all money paid to said company by said town or its agents on or after April 1, 1905; (4) that said company be ordered to account to said town for the care of, and for the rents, income, and profits derived from, the property and rights of said company during the time said company remained in possession and control of said property and rights from and after the date of the purchase by said town; ” (5) that commissioners be appointed to determine the compensation to be paid by the town for the property and rights of the company purchased by the town; (6) for damages; (7) for a receiver; (8) that the company be enjoined “from distributing or expending any of the money, funds, or credits now in its control or possession or owed to it until the final disposition” of the case, and (9) for general relief, “to the end that said company shall not profit unjustly and illegally at the expense of said town. ”</p> <p>By order of Loring, J., exceptions of the plaintiff to the master’s report were overruled, the report was confirmed, and a final decree was entered dismissing the bill with costs.</p> <p>The plaintiff appealed.</p> <p>The plaintiff’s brief contained the following statement: “The town agrees that it became, and is now, the owner of so much of the water system as it was authorized to purchase, and that the Company is entitled to payment for the fair value thereof.” The plaintiff argued that the sale was consummated at the time of some one of the votes of the town previous to April 1, 1905, when the conveyance was made, and therefore that the town was entitled to what the company had received as net income since that time (whichever should be selected) and should not have been charged in the accounting and adjustment immediately following the purchase with expenditures for new construction made since such date, but should be allowed to recover what sums were so charged to it.</p>

<p>Deceit. Evidence. Practice, Civil, Conduct of trial: judge’s charge, Exceptions. College of Physicians and Surgeons of Boston. Damages, In tort.</p> <p>If, at the trial of an action for deceit in falsely asserting to a student, considering entrance into a certain college for the procuring of a degree in dentistry, that the college gave the degree of D.M.D., the plaintiff in direct examination testifies that the false statement was made to him orally and was, “We can fix you up nicely in three years, make you a D.M.D.,” and in cross-examination testifies that the statement was, that the college would make him a D.M.D., it is for the jury to determine whether the statement testified to on direct examination was made.</p> <p>A statement by the general agent of a college to a student who is considering entering the college in order to gain an education in dentistry and a degree therein, “We can fix you up nicely in three years, make you a D.M.D.,” is in effect a statement that the college has authority to grant that degree; and, if the college has no such authority, the statement may be found to have been not merely a promise, but a false statement of fact.</p> <p>A representation, by the general agent of the board of trustees of a medical college to a student considering entrance into the college for the purpose of procuring, through a three years’ course of study, an education and a degree in dentistry, that the college could grant such a degree, is a material representation, and, if the statement was false and was made by the agent as of his own knowledge without his knowing it to be true or false and for the purpose of inducing the student to act upon it, which, without knowing of its falsity, the student did to his loss, the student may maintain an action for deceit against the agent.</p> <p>At the trial of an action for deceit against the general agent of a medical college for falsely representing to the plaintiff that the college had authority to grant a degree in dentistry, the judge, subject to an exception by the defendant, instructed the jury in substance that, if they were satisfied that the defendant made an absolute promise to grant the degree to the plaintiff, at the time having no intention to carry out such promise, and that he made it for the purpose of deceiving the plaintiff, they should find for the plaintiff. There was no evidence calling for such an instruction. The jury found for the plaintiff. Held, without considering whether the instruction would have been correct if there had been evidence to which it was applicable, that the exceptions must be sustained.</p> <p>In an action for deceit against the general agent of a medical college for falsely representing to the plaintiff that the college had authority to grant a degree in dentistry, if it appears that the representation was made and that it was false, and that the plaintiff passed all the examinations of the college qualifying him for the degree, it is no defense to the action that a condition of the granting of the degree which, was one of the regulations of the college, that three fourths of the faculty should consent to it, was not complied with because, at the meeting of the faculty when the plaintiff’s record was considered, less than three fourths of the members were present.</p> <p>St. 1883, c. 153, § 1, incorporating The College- of Physicians and Surgeons of Boston did not give authority to that corporation to grant the degree of Dentarias Medicinie Doctor.</p> <p>If, in taking an exception to a portion of a charge of a judge to a jury, no reference is made to the state of the pleadings as a basis of the exception, it is not open to the excepting party in this court to support the exception on that ground.</p> <p>In an action for deceit against the general agent of a medical college for falsely representing to the plaintiff in 1908, when he was considering entering upon a course of study in dentistry, that the college had authority to grant a degree in dentistry, where it appeared that it had authority only to grant the degree of Doctor of Medicine and not a degree in dentistry, exceptions taken by the defendant to the admission in evidence at the trial of statements by the defendant to other physicians, one in 1909 and another in 1910, tending to show that the defendant did not know whether the college had the right to grant the degree, must be overruled because the evidence was admissible on the issue, whether the defendant made the statement to the plaintiff as of his own knowledge without knowing whether it was true or not; and an exception by the defendant to the admission of evidence that in 1909 the defendant had said to another physician that the college had a right to grant the degree because of their having the right to grant the degree of Doctor of Medicine, and that, having that right, they had the right to grant any degree in medicine, must be overruled because, so far as it was material, the evidence helped and did not harm the defendant.</p> <p>In such action the plaintiff is not entitled to have considered, as bearing upon the question of damages, what he paid for tuition, because the measure of the damages to which the plaintiff is entitled in case the defendant is liable is the difference in value between what the plaintiff received and what he would have received if the representations of the defendant had been true. In this case, it appearing that the plaintiff had received an education in dentistry without a degree, and that, if the representations of the defendant had been true he would have received both the education and the degree, the measure of damages was held to be what it would cost the plaintiff in time and money to get the degree in dentistry.</p> <p>In the same action, in sustaining exceptions of the defendant and ordering a new trial, it was said that because, if the jury found that the alleged statement had been made by the defendant, it was a statement of fact although it involved a question of law, the trial judge had erred in ruling at the request of the defendant in substance that the statement made by the defendant as to the authority of the college to grant the degree of D.M.D. was “not a statement of a past or present fact,” that the right of the college to grant that degree was a question of law, that the plaintiff could not recover for any misstatement by the defendant as to the legal right of the college to grant the degree, and that “a misstatement of the law cannot form the basis of any action for deceit.”</p>

<p>Voluntary Association. Equity Pleading and Practice, Parties, Appeal.</p> <p>A bill in equity cannot be maintained by a voluntary unincorporated association in the name of the association. In the present suit, the association being described as composed of three individuals “and many other members too numerous to mention,” the bill was treated as if it had been brought by those individuals suing in behalf of themselves and of all the other members of the association.</p> <p>Where in a suit in equity, which was referred to a master, the hearing before the master was confined by agreement of the parties to two issues, all other averments of the bill being taken as admitted, a motion, presented to the master after the first draft of his report was submitted to the parties, seeking a reopening of the hearings for the hearing and reporting of evidence on certain specified issues, should be denied by the master, where it appears that some of the specifications in the motion relate to issues other than the two to which by agreement the hearings were confined and the master finds that those two issues have been fully tried; and, after the filing of the master’s report, a motion to recommit it to the master based on the same grounds properly may be denied.</p>

<p>Equity Jurisdiction, Equitable replevin. Assignment. Estoppel. Insurance, Life. Bills and Notes, Validity.</p> <p>One who received an assignment of a policy of life insurance from the insured without the policy itself, which by reason of fraud of an agent of the insured Was not delivered to him, may maintain a suit in equity for possession of the policy against a person to whom it has been delivered by the agent without right and who secretes it so that it cannot be reached in an action at law.</p> <p>An assignment of a policy of life insurance by the insured is valid as between him and the assignee, although the policy is not delivered to the assignee and although a provision of the policy, that no assignment of it “shall be valid unless made in writing, and a duplicate or certified copy thereof be filed at the office of said company,” is not complied with.</p> <p>A policy of life insurance is a non-negotiable chose in action, and, if by his own voluntary action the insured or one to whom the insured has assigned his rights so clothes a third person with the indicia of ownership as to justify others in regarding him either as the rightful owner or as having authority from that owner to transfer the policy, the owner or a rightful assignee is estopped to set up his title against a bona fide purchaser for value from such third person.</p> <p>An assignment of a policy of life insurance was given by the insured with the policy to an agent of the company to deliver to the assignee. The agent delivered the assignment to the assignee but refused to deliver the policy, falsely representing that the company held it as security for premium notes of the insured. The assignee, by reason of his “full confidence in” the agent, did nothing further about the assignment of the policy for four and one half years and during that time did not notify the insured that he did not have possession of it nor give any notice to the company of his assignment. In the meantime, the agent, acting for the insured, procured a loan of money upon a note of the insured and as security for the note delivered to the money lender the policy together with an assignment to the payee of the insured’s interest therein. The agent then died and, the facts becoming known to all the parties, the first assignee brought a suit in equity against the second assignee to gain possession of the policy. Held, that the first assignee by his voluntary action in leaving the policy in the possession of the agent for the insured was estopped to deny the validity of its delivery to the second assignee, and could have possession of it only upon paying to the second assignee the amount of his note with interest and costs of suit.</p> <p>In the same suit it appeared that, after the giving of the note to the second assignee, the agent procured a second loan from him for which he gave him a second note of the insured upon which, after it was signed, he had written without authority of the insured a statement that the same policy was to be held as security for it. Held, without deciding whether such interpolation upon the note destroyed its validity, that the second assignee had no right to hold the policy as security for the note.</p>

<p>Petition, filed in the Land Court on February 8, 1912, by the Massachusetts Institute of Technology, incorporated by St. 1861, c. 183, against the. Boston Society of Natural History, incorporated by St. 1830, c. 56, amended by St. 1861, c. 183, § 5, and others, for the registration of the title of the petitioner to the westerly two thirds portion of the rectangular tract of land in Boston bounded by Berkeley, Newbury, Clarendon and Boylston Streets, held by the petitioner under St. 1861, c. 183, and St. 1903, c. 438; and also a</p> <p>Petition, filed in the Land Court on April 17, 1913, by the same corporation under R. L. c. 182, §§ 11-14, as amended by St. 1904, c. 448, against the same respondents to determine the validity, nature and extent of certain alleged easements claimed in the land of the petitioner described in the first petition.</p> <p>In the Land Court the cases were tried together before Davis, J., who at the request of the various parties reported them for determination by this court. A statement of the facts on which the decision of this court in Wilson v. Massachusetts Institute of Technology, 188 Mass. 565, was based, taken from the opinion of the court, will be found on pages 566-579 of 188 Mass.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 29, 1913, against "Edward J. McGivern . . . individually and as an officer and member of a voluntary unincorporated association, to wit, The Operative Plasterers’ International Association of the United States and Canada; and William C. Gumming, William J. Taylor, William C. Keating, and said Edward J. McGivern, individually and as officers and members of a voluntary unincorporated association, to wit, Union No. 10, Boston Branch, Operative Plasterers’ International Association of the United States and Canada, and all other members of said Union No. 10, Boston Branch, most of whom are to the plaintiff unknown, and who are too numerous to be individually named as defendants in these proceedings.” The bill sought to enjoin the defendants from interfering unlawfully with the plaintiff’s business and for damages.</p> <p>The suit was referred to Clarence H. Cooper, Esquire, as master. The material facts, found by him are stated in the opinion. The case was reserved by Sheldon, J., for determination by the full court.</p>

<p>Evidence, Extrinsic affecting writings, Entries in books of account. Contract, In writing.</p> <p>In an action to recover the price of certain printed blanks alleged to have been printed for the plaintiff by the defendant, it appeared that the defendant was an attorney at law and he contended that he had ordered the blanks in behalf of a client and that he was not liable therefor. It appeared that the defendant had idled in and signed an order blank for the plaintiff, describing the blanks ordered, he having written after the word “ Collect,” the figures “ $92,” after the letters “C.O.D.” the word “Yes,” and having signed his name after the words, “Ordered by.” At the trial the defendant testified without objection that, before signing the order, in a telephone conversation he stated to the plaintiff his client’s financial standing and that the plaintiff “must not look to him for payment of the bill, and that if the plaintiff took the order he must take it with that understanding.” The judge ruled that the order was a contract signed by the defendant which bound him personally, and that the plaintiff could not discharge himself from liability by paroi evidence. Held, that the judge’s ruling was wrong because, the order containing no promise to pay but ending with the words “Ordered by,” followed by the defendant’s name, might be found not to contain the entire contract as to the transaction, so that the verbal arrangement might be shown in evidence and be given its full effect.</p> <p>Since St. 1913, c. 288, providing that “an entry in an account kept in a book . . . shall not be inadmissible in any civil proceeding as evidence of the facts therein stated 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 aforesaid,” a judge, before whom is being tried an action of contract for goods sold in which the defendant, an attorney at law, contends that his client and not he had contracted for the goods, properly may admit in evidence, after he has made the necessary findings as to the good faith and time of the entry, an entry in the plaintiff’s book of account in which he had charged the goods to the defendant.</p>

<p>Trust, Construction, Termination.</p> <p>A paragraph of a will made in 1879 contained a provision placing in the hands of trustees a fund of $100,000 and all of the testator’s shares in a certain building trust, the paragraph closing with the words: “And it is my wish to establish this trust to continue during the lives of my wife, my two sons and my daughters, M and C, and during the life of the longest liver of them.” There next followed a paragraph directing the trustees to pay quarterly to the wife and to each of the daughters M and C $2,000 a year, “such payments to be made from the income and if necessary from the principal of said trust fund of $100,000.” A later paragraph of the will read: “At the death of the survivor of all my children, my trustees are to divide the capital fund equally among the children of my five children (being the four already named and my daughter A) each grand-child taking one equal share, this division to be per capita and not per stirpes and the issue of any of my grand children to stand in the place of the parent.” At the time the will was made A was a widow thirty-nine years of age, who had received a considerable estate at the death of her husband. In 1913, after the death of all the children excepting A, who was childless, the trustees petitioned for instructions as to whether the time for the termination of the trust had arrived, or whether distribution should await the death of A. Held, that it was the evident intention of the testator that the trust should not be terminated until the death of all his children, because otherwise the will would operate to create a discrimination among the testator’s grandchildren, which it was his evident intention to avoid; and that therefore distribution must await the death of A.</p> <p>In case of irreconcilable differences between provisions in a will, a clear and unambiguous provision, coming later in the will, controls, as being more likely to express the final purpose of the testator.</p>

<p>Patent. United States Courts. Jurisdiction. Contract, Construction. Equity Pleading and Practice, Findings of judge. Words, “Found.”</p> <p>A suit in equity founded on an alleged breach of a contract in writing, to pay a stipulated royalty on the selling price of an appliance patented by the plaintiff and manufactured and sold by the defendant under an exclusive license from the plaintiff, can be maintained in our courts; as the United States courts under U. S. Rev. Sts. § 711, cl. 5, do not have exclusive jurisdiction of such a suit brought upon the contract and arising out of it, even where the validity of a patent incidentally is drawn in question.</p> <p>In a suit founded on an alleged breach of a contract in writing in failing to pay a stipulated royalty on the selling price of an appliance patented by the plaintiff and manufactured and sold by the defendant under an exclusive license from the plaintiff, where it appears that by a provision of the contract the defendant was to be excused from paying the royalty if the plaintiff’s patent should be “found at any time to infringe other patents,” the word “found” must be construed to mean found by a court of competent jurisdiction; and the fact that the defendant received from another manufacturer a notice that the alleged patent of the plaintiff was an infringement of a patent used by such manufacturer, which was followed by no further action on his part, is immaterial.</p> <p>Where a suit in equity is reported to this court with the consent of the parties by the trial judge, who states his findings of fact but does not report the evidence, the findings of the judge must be taken to be true.</p>

<p>Watercourse. Waterworks. Cambridge. Equity Jurisdiction, To restrain diversion of watercourse, Alternate relief. Damages, For property taken or injured under statutory authority.</p> <p>Under St. 1892, c. 421, § 1, authorizing the city of Cambridge to “take and hold, by purchase or otherwise . . . any land, rights of way, easements and real estate necessary for constructing, maintaining and protecting a distributing reservoir,” that city had no right to acquire underground waters which were the source of a natural stream, or to divert or diminish the waters of such a stream, at least so far as such acquisition was not necessarily incident to the proper construction and use of its distributing reservoir and of the pipes leading into and out of such reservoir. Consequently a fruit grower through whose land a natural brook flowed, the waters of which were diverted by the taking by the city of Cambridge of the land containing the source of the brook for the construction of such reservoir, has no remedy by a petition for the assessment of damages and may maintain a suit in equity against the city for appropriate relief.</p> <p>In a suit in equity by a fruit grower, through whose land a natural brook flowed, against a city that without authority had diverted the waters of the brook in taking the land that contained the source of the brook for the construction of a distributing reservoir, a decree is proper which orders the defendant either to cease to interfere with the natural flow of the brook as it was when the defendant began the construction of its reservoir, or else to deliver daily into the brook not less than the number of gallons of water which was the average daily flow of the brook in its natural condition. And it is not a valid objection to this decree, that the natural flow of the brook varied and was uncertain in amount from time to time and that the plaintiff was entitled only to a variable supply of water.</p>

<p>Domicil. Probate Court, Jurisdiction.</p> <p>Where a man who theretofore had had his domicil in a city in another State, declared his purpose to give up his residence there and establish his home in a city in this Commonwealth and this declared intention was manifested by unequivocal acts both as to the relinquishment of his former residence and the acquisition of the new one, the fact that he retained a large dwelling house and fourteen acres of land in the city of his former residence in the other State, which he was unable to dispose of in spite of his efforts to do so, and that during two winters his wife kept this house open although she often was with her husband in this Commonwealth, and the fact that while dwelling in this Commonwealth he lived in a hired house or in an apartment hotel until his death here, are not inconsistent with a finding that his domicil at the time of his death was in the county in this Commonwealth in which he lived, and accordingly it may be found that the Probate Court of that county has jurisdiction of a petition for the proof of his will.</p>

<p>Practice, Civil, Amendment. Superior Court.</p> <p>Under R. L. c. 173, § 48, the Superior Court has no power to allow a plaintiff to amend his declaration by adding to it a cause of action that could not have been intended when the writ was sued out, and accordingly an administrator, who has appeared in an action brought by his intestate for personal injuries, cannot be allowed to amend the declaration by adding a count under R. L. c. 171, § 2, St. 1907, c. 375, for causing the death of the plaintiff’s intestate.</p>

<p>Contract, Construction, Performance and breach. Equity Jurisdiction, Damages. Damages, In equity, Nominal, Liquidated.</p> <p>A general contractor, who had agreed with a landowner to erect a new building after demolishing an old building that was on the site, made a contract with a subcontractor by which he sold the materials of the old building to the subcontractor who agreed to remove them and clear the land by a day named. The subcontract provided that, upon the failure of the subcontractor “to prosecute the work satisfactorily to the architects and” the general contractor, the old building and its materials should revert to the general contractor. Repeated complaints were made .by the architects and the general contractor of the manner in which the subcontractor was performing his work of demolition and removal, which resulted in the general contractor taking possession of the premises and completing the work. In a suit in equity brought by the subcontractor against the general contractor to enjoin him from demolishing the old building and removing the materials and for damages, it was found by a master that if the plaintiff had not been ejected he could have completed his work by the day named, but that this could not have been known when he was ejected by the defendant and that the repeated complaints of the architects and the defendant were made in good faith. Held, that by the terms of the contract it was within the power of the defendant to direct the manner of the performance of the plaintiff’s work and that it was the plaintiff’s duty to conform to the defendant’s directions so long as the defendant acted reasonably and in good faith under an honest sense of dissatisfaction.</p> <p>Where a general contractor, who has a contract with a landowner for the erection of a building.after removing the old building then on the site, sells the materials of the old building to a subcontractor, who agrees to demolish the old building and remove the materials by a day named, and also deposits with the general contractor a certain sum of money, “which amount is to be forfeited in case the other conditions of the contract are not satisfactorily carried out” by the subcontractor, and afterwards the subcontractor commits a breach of the contract which inflicts no substantial damage upon the general contractor and gives him a right only to nominal damages, the deposit of money is to be treated as intended by the parties merely to secure the performance of the contract and not as liquidated damages; and, on the subcontract being terminated, the subcontractor is entitled to have the amount of the deposit returned to him after the deduction of the amount allowed as nominal damages, which in this case was $5.</p>

<p>Negligence, Fright accompanied by physical injury, In guarding explosives, Res ipso loquitur. Actionable Tort. Evidence, Presumptions and burden of proof.</p> <p>It seems that if a girl is at work in a shop and an explosion occurs so violent as to splinter and rip up the floor and throw bottles about the room and break them, and the girl thereupon faints and cannot remember that she was struck by anything or was thrown down, but on an examination made after the accident a physician finds bruises on her body which could have been caused by a fall or by being thrown violently against some object in the room, the girl has a cause of action against a person whose wrongful act or negligence caused the explosion, although the principal injuries suffered by her were due to fright, there being evidence of accompanying physical injury.</p> <p>It seems that, if a girl is so frightened by an explosion that she faints and falls unconscious to the floor, where she sustains some physical injury, she has a cause of action against a person who wrongfully caused the explosion.</p> <p>In an action for personal injuries from an explosion caused by the bursting of a cylindrical steel tank filled with carbonic acid gas, proof of the fact, that the explosion occurred in the basement of a building owned and, with the exception of the first floor, occupied by the defendant as a factory, is not evidence for the jury of the defendant’s liability, where there is nothing to show that at the time of the explosion the tank was in the defendant's custody or control, or to show how it happened to be in the basement of the defendant’s building or how long it had remained there, and where also there is no evidence that such tanks or their contents were manufactured, used or dealt in by the defendant in connection with his business, nor any evidence to show the nature of that business or to show that the defendant had any reason to believe that the tank was on his premises until after the explosion had occurred.</p> <p>The right of a jury to disbelieve a defendant’s denial of the existence of a fact essential to the plaintiff’s case does not furnish the plaintiff with evidence of that fact.</p> <p>In an action for personal injuries the rule of res ipso loquitur is not applicable unless the defendant had control of the thing that caused the injury.</p>

<p>Evidence, Matters of common knowledge, Presumptions and burden of proof. Negligence, Res ipso loquitur.</p> <p>It is a matter of common knowledge, of which the court takes judicial cognizance, that ice is a hard, brittle and slippery substance, and that a cake of it when being carried is likely to fall and break unless handled carefully.</p> <p>Where it appears in evidence that a cake of ice, when being carried by a retail ice dealer with ice tongs over his shoulder through the doorway of a kitchen for delivery to a customer, fell to the floor and injured the customer, and where the cause of the fall is not explained, a jury can find that the accident would not have occurred without fault on the part of the defendant and may infer negligence from its happening.</p>

<p>Contract upon a judgment, the plaintiff alleging in the writ that he brought the action for the benefit of one Daniel C. Fletcher, assignee. Writ in the Municipal Court of the City of Boston dated March 12, 1912.</p> <p>On appeal to the Superior Court, the case was tried before Bell, J. The plaintiff introduced a certified copy of a record of a judgment in the Superior Court, which showed that on December 14, 1906, the plaintiff recovered judgment in an action of contract for $700.55 against one John J. Walsh, one H. Theodore Fletcher and the defendant in this action.</p> <p>The only other witness for the plaintiff was H. Theodore Fletcher.</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the plaintiff asked the judge to rule as follows:</p> <p>“1. On all the evidence the plaintiff is entitled to a. verdict for the amount of the judgment, with interest to date.”</p> <p>“3. The only question is, does the defendant owe the amount of the judgment?”</p> <p>The judge refused to give such rulings. There was a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Marriage and Divorce, Alimony. Judgment. Conflict of Laws.</p> <p>In a proceeding for a divorce brought by a wife in the State of Maine, in which the husband appeared by his attorney, a decree was entered, granting the divorce, giving to the libellant the custody of minor children, ordering the libellee to pay to her a certain amount per week till further order of the court, and ordering that, in default of any of such payments for the space of two months, an execution was “to issue therefor.” Within a year thereafter the libellant married another man. More than four years after' the decree the libellant, after filing an affidavit which was customary in such cases and without any notice to the libellee, was granted an execution for four years’ arrears of alimony and brought an action therefor in this Commonwealth. The Revised Statutes of Maine, c. 62, § 11, provides that when either of the parties in such a proceeding ‘ has contracted a new marriage since the former trial, a new trial may be granted as to alimony or specific sum decreed, on such terms as the court may impose and justice require, when it appears that justice has not been done through fraud, accident, mistake or misfortune.” The libellant had not asked for a new trial under that statute. Held, that, in the absence of a modifying decree made under the statute, the former decree was in force; that the application for an execution was merely incidental to the original suit, so that no new notice to the defendant was necessary, and that, therefore, under the full faith and credit clause of the Constitution of the United States, the decree must be given effect in this Commonwealth, and judgment must be entered for the plaintiff.</p>

<p>Negligence, Street railway. Evidence, Contradictory statements of witness.</p> <p>If, when a passenger is alighting from the front vestibule of a closed street railway car while it is in motion, a raincoat which he is wearing becomes caught in the door so that he is in danger of being injured, and this fact is called to the motorman’s attention, it is the motorman’s duty to stop the car .in order to prevent injury to the passenger.</p> <p>At the trial of an action against a street railway company for personal injuries alleged to have been caused when the plaintiff’s raincoat caught in the front door of the vestibule of a closed car of the defendant as he was alighting from the car when it was in motion, so that he was dragged by the car and run over, the plaintiff testified in substance that he ran beside the car before he fell about one hundred feet, shouting continuously. No person testified that he had heard the continuous shouting. A witness in a nearby building testified that he heard one “holler.” A passenger in the front vestibule, who was called as a witness by the plaintiff, was not questioned on the point. Another passenger in that vestibule and the motorman both testified that they heard no shouting. Held, that there was no evidence to warrant a finding that the motorman heard or ought to have heard the shouting.</p> <p>In an action against a street railway company for personal injuries caused by the plaintiff’s raincoat being caught in the door of the front vestibule of a closed car of the defendant as he was alighting when the car was going about four miles an hour, causing him to fall, be dragged and run over when the speed of the car was increased, if it appears that, as the plaintiff jumped from the car a passenger standing beside the motorman told him in a sharp commanding voice and vigorous language that he had better stop the car to see where “that fellow went to,” and that the motorman merely shut off the power and applied the brake, it is not evidence of negligence on his part that he did not also reverse the power, which he knew would have stopped the car sooner.</p> <p>Where, in an action against a street railway company for personal injuries alleged to have been caused by negligence of a motorman in not stopping a closed car of the defendant from which the plaintiff was alighting while it was in motion when a raincoat which the plaintiff was wearing caught in the door of the vestibule, there is evidence that, when the plaintiff alighted, the car was going only four miles an hour, but that almost immediately, and while the plaintiff was running beside it, its speed was increased until he could no longer keep his footing, and he fell, was dragged and was run over, if a witness for the plaintiff who was in the front vestibule testifies in substance that, when the plaintiff jumped, he, the witness, spoke to the motorman in a “kind o’ sharp, quick and commanding tone of voice,” saying, “You better a damn sight stop the car as soon as you can to see where in hell that fellow went to,” and that thereafter the car ran “about sixty-five paces rather short” before it came to a stop, although in cross-examination the same witness states that the car went only a car length after he spoke to the motorman, the jury are warranted in finding that after the witness spoke to the motorman the car continued for one hundred and seventy-five feet, and that the motorman was negligent.</p>

<p>Negligence, In use of highway, Street railway, Violation of rule. Evidence, Negative testimony, Of failure to sound gong.</p> <p>In an action by a woman against a street railway company for personal injuries caused by the plaintiff being struck by the drip rail of a street car of the defendant as she was crossing a street from behind another car bound in the other direction on a parallel track, it appeared that the inner rails of the tracks were four feet eight and one half inches apart, that the overhang of each car was eighteen inches, and that the drip rail protruded beyond the overhang. The plaintiff testified that she had just alighted from a closed car, which jutted out and obstructed her view, that as she passed behind it she stopped and listened, having in mind rules of the defendant which required motormen to sound gongs and to run slowly in passing a stationary car, that she heard no gong or sound at all, that she “stepped out in the direction” of the other track, when she saw a car coming on the other track “very fast, as fast as she ever saw cars go when they had a clear road,” that she “had no time hardly to think, . . . only time to jump back as quickly and as hard as she could,” and that the drip rail struck her. A witness for the defendant, who was a passenger on the car that struck the plaintiff, testified that the plaintiff “stepped one step out” as that car approached. Held, that the jury were warranted in finding that the plaintiff was in the exercise of due care.</p> <p>In an action against a street railway company for personal injuries caused by the plaintiff being struck by a car of the defendant as she was crossing a street from behind a car bound in the opposite direction from which she just had alighted, evidence tending to show that the motorman of the car which struck the plaintiff was violating rules of the defendant which required him to run slowly and to sound a gong when passing a stationary car will warrant a finding that the motorman was negligent.</p> <p>Testimony, that a woman, who was crossing a street railway track from behind a street car from which she just had alighted, having in mind a rule of the company which operated cars on the tracks requiring that a gong should be sounded by the motorman of a car passing a stationary car, stopped and listened and heard no gong, will warrant a finding that no gong was sounded by a car which approached rapidly on the track that she was crossing and struck her.</p>

Tort, by the administratrix of the estate of John E. J. Hart-nett, late of Boston, for the conscious suffering and death of the intestate alleged to have been caused by his being run over by an automobile of the defendant due to negligence of the chauffeur. Writ dated February 19, 1912.

<p>Landlord and Tenant, Covenants in lease. Contract, In writing, Construction. Evidence, Extrinsic affecting writings. Damages, In contract. Words, “Now,” “As good.”</p> <p>Where a lease of real estate is dated on the first day of the term that it creates, and purports to have been executed on that day, but in fact was executed about five months later after certain changes had been made in the buildings on the premises, and contains a covenant of the lessee to deliver up the premises at the end of the term in “as good order and condition ... as the same now are,” the condition referred to is that at the date of the lease and not that at the time of its execution, and the plain words of the covenant cannot be varied by any extrinsic evidence to the contrary.</p> <p>A covenant by a lessee of real estate to “deliver up the premises to the lessor ... at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are,” contained in a lease which also contains a stipulation of the lessee that he will not “make or suffer to be made any alteration therein, but with the approbation of the lessor thereto, in writing . . . first obtained,” does not require the lessee to restore to its original condition a building which has been altered during the term with the consent of the lessor, but means that the building at the expiration of the term shall be returned to the lessor in a state of repair as good as it was in at the beginning of the term both in regard to the unchanged portion of it and the parts that have been altered in conformity with the provisions of the lease.</p> <p>In an action for a breach by a lessee of real estate of a covenant to return the premises with their permitted alterations at the end of the term in as good - condition as they were in at the beginning of it, the plaintiff on proving the breach of covenant is entitled to recover such a sum of money as at the end of the term would put the premises in the condition in which the tenant was bound to leave them.</p> <p>Where on the back of a lease of real estate and personal property, that contained an agreement of the lessee to purchase the leased property at the end of the term, there was indorsed an express agreement signed by both the parties that by reason of damage done to personal property included in the lease by a fire that occurred after the date of the lease “ and to cover all loss sustained by said [lessee] under the within agreement in consequence of said fire, there shall be allowed to him upon his completing the terms of the purchase herein provided for, the sum of $325, from off the purchase price within named,” the lessee, having chosen to limit his remedy for loss by fire to a deduction from the purchase price, cannot claim, in case he does not make the purchase, any right to deduct the amount of such loss from the amount due from him as rent under the lease.</p>

<p>Tort, in two counts, the first being for the alleged conversion of certain personal property. The second count alleged that the plaintiff was a tenant of the defendant in a building belonging to the defendant on Church Street in Lowell, that the plaintiff while such tenant purchased at great expense and installed in the building a large quantity of machinery, piping, shafting and other articles which were trade fixtures used by the plaintiff in carrying on the business of a steam laundry in the building and which the plaintiff had a right to remove therefrom, but that the defendant forcibly prevented the plaintiff from removing such property. Writ dated July 19, 1906.</p> <p>In the Superior Court the case was referred to Alfred P. Sawyer, Esquire, as auditor, and later was tried before McLaughlin, J., upon the auditor’s report and oral evidence. The denial by the judge of a motion to exclude the auditor’s report is stated in the opinion. The facts material to the question before this court which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. That all the evidence and findings in the auditor’s report as to the conversation between officer Murphy and the plaintiff Jean is inadmissible and should be struck out of said report and not considered by the jury.</p> <p>“2. That there was no evidence in the case sufficient to warrant a finding by the auditor that officer Murphy was authorized by the defendant to prevent the taking down and removal of any of the machinery or property of the plaintiff from the defendant’s building.</p> <p>“3. That the general findings or conclusions of the auditor in favor of the plaintiff are not warranted by the facts found by him.</p> <p>“4. That the general findings or conclusions of the auditor in favor of the plaintiff are not warranted by the evidence reported which was properly admissible and by the facts properly found by him.”</p> <p>“7. That upon all the evidence in the case the plaintiff is not entitled to recover under the first count in his declaration.”</p> <p>“9. That there is no evidence in the case sufficient to warrant the jury in finding that the defendant converted any of the personal property of the plaintiff not covered by the injunction issued in the equity suit of Cawley v. Jean.”</p> <p>“ 15. That in determining whether the defendant authorized officer Murphy to prevent the plaintiff from removing his property from the defendant’s premises the jury are not ‘to consider any of the evidence or findings of the auditor as to the conversation between the plaintiff and officer Murphy.</p> <p>“16. That the fact that part of the property declared for by the plaintiff in this action was attached in a suit brought by the defendant upon the same day upon which the plaintiff attempted to remove his property is not to be considered by the jury as evidence either of a conversion of any of the plaintiff’s property by the defendant or in proof of the second count of the plaintiff’s declaration.”</p> <p>“21. That there is no sufficient evidence in the case of any demand made by the plaintiff upon the defendant for any of the property alleged to have been converted by the defendant and the jury must therefore return a verdict for the defendant upon the first count of the plaintiff’s declaration.”</p> <p>The judge refused to make any of these rulings. He ruled that the plaintiff could not recover on the second count of the declaration, which alleged wrongful interference on the part of the defendant with the removal by the plaintiff of certain fixtures, and submitted the case to the jury on the first count.</p> <p>The jury returned a verdict for the plaintiff in the sum of $558.13; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in December, 1913, before Rugg, C. J., Hammond, Loring, Braley, & De Courcy, JJ., and afterwards was submitted on briefs to all the justices.</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 awarding to Daniel Murphy as partly dependent for support on the earnings of his son Walter Murphy, a minor fifteen years of age, who received a personal injury arising out of and in the course of his employment which resulted in his death on September 26, 1912, the sum of $4 a week for three hundred weeks from September 20, 1912, the date of the injury, in accordance with the terms of St. 1911, c. 751, Part II, § 6.</p> <p>The case was heard by Pierce, J. The facts shown by the report of the Industrial Accident Board are stated in the opinion. The judge made a decree approving the decision of that board and ordering payment in accordance therewith. The insurer appealed.</p>

Two complaints received and sworn to on May 15, 1912, each against a different defendant, under R. L. c. 214, § 17, for keeping certain rooms on the first and second stories of a building numbered 7 on Spring Street in Watertown for the purpose of registering bets and of buying and selling pools upon the results of certain games of baseball.

<p>Tort for injuries to the plaintiff’s horse and buggy from being struck by a car of the defendant at about nine o’clock on the evening of June 25, 1910, when one McDonough was driving the horse across the defendant’s tracks on Massachusetts Avenue in Cambridge, intending to go into Cambridge Street. Writ in the Municipal Court of the City of Boston dated October 15, 1910.</p> <p>On appeal to the Superior Court the case was tried before Fox, 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. It was stated in the bill of exceptions that McDonough “for the purposes of the case was admitted to be the plaintiff’s servant.” McDonough was accompanied by one Russell, who was helping him to bring a sick horse from Watertown to Charlestown. Russell was holding the rope of the halter of the sick horse, which was following behind the buggy. McDonough was sitting at the left of the seat and Russell on the right.</p>

<p>Bill in equity, filed in the Superior Court on February 5,1912, in which the plaintiff alleged that on August 3, 1910, he filed a certificate claiming a mechanic’s lien upon certain real estate of the defendant, that on August 23 the defendant asked him to accept his bond without sureties for a dissolution of the lien and agreed that in consideration of the plaintiff doing so he would abide by the judgment “ of the lower court having jurisdiction of the plaintiff’s petition to enforce his claim of lien” and would accept the judgment of that court as final and pay it at once; that the plaintiff, in consideration of the defendant’s promise, accepted a bond of the defendant without sureties, the condition of which was that, "if the said obligor shall, within thirty days after the final judgment in any suit which may be brought to enforce the aforesaid lien, pay to the party claiming the same the sum of $566.85, being the sum fixed as the value of the property so to be released as aforesaid, or so much of said sum as may be necessary to satisfy any amount for which such property may be found to be subject to such lien in such suit with costs therein then this obligation shall be void, otherwise it shall be and remain in full force and virtue;” that it was understood and agreed that the final judgment referred to was the judgment of the lower court, although the words “of the lower court” were omitted; that the plaintiff prosecuted to judgment in the Police Court of Somerville a petition to enforce his lien; that the defendant had appealed therefrom and stated that he would not abide by the judgment of the police court and would not pay the judgment at once. The prayers of the bill were that the defendant be enjoined from prosecuting his appeal, that the bond be corrected to accord with the oral agreement of the parties and that the defendant be ordered to pay the amount of the judgment of the police court.</p> <p>The defendant filed a “plea in bar” denying the making of the alleged agreement to abide by the judgment of the police court. The plaintiff joined issue “on the defendant’s answer, or plea in bar.”</p> <p>The suit was heard by Hardy, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. The judge filed a memorandum of his finding, in which he stated that he was not satisfied that there was a mutual mistake of the parties as to having the words “of the lower court” inserted in the bond, so that he ought not to order a revision of the bond. It appeared that the petition for the enforcement of the plaintiff’s lien was filed in the Police Court of Somerville on September 20, 1910, and that judgment thereon was rendered in that court on May 12, 1911. Other material findings contained in the memorandum are stated in the opinion.</p> <p>A final decree was entered enjoining the defendant from prosecuting his appeal and ordering him to pay the judgment of the police court, $601.88, with interest and costs. The defendant appealed.</p>

Petition, filed in the Probate Court for the County of Suffolk on April 18, 1912, by the trustees under the will of Sarah A. Peele, late of Beverly, the administrator with the will annexed of the estate of Mary S. Dwight, late of Dublin, New Hampshire, and the daughter of Mary S. Dwight, to determine whether the whole or any part of property, held by trustees under the will of Sarah A. Peele, which, in the exercise by Mary S. Dwight in her will of a power of appointment,…

<p>Tort against a corporation maintaining a department store in Lowell, the declaration alleging in the first and second counts that servants and agents of the defendant assaulted and illegally detained the plaintiff, and in a third count that they falsely and maliciously charged the plaintiff with the crime of larceny, saying, “You have stolen a handkerchief from us, and have it in your pocket.” Writ dated December 15, 1911.</p> <p>In the Superior Court the case was tried before McLaughlin, J. The testimony of the plaintiff, who could understand or talk little if any English, was as follows upon the issue of the slander alleged in the declaration: He had entered the defendant’s store for the purpose of examining and purchasing goods. “Before I went two steps a hand grabbed me and I asked ‘What is the matter?’ He didn’t give me no answer but called with the hand (indicating) to some other to come. I didn’t understand what he said nor what language he spoke. He did not speak in Greek. There came a man to the men who were holding me and they were in conversation in English which I didn’t understand. The Greek clerk (Míralos) said to inc, ‘This gentleman here accuse you that you steal a handkerchief and that you have it in your possession.’ This is what the Greek salesman said to me. ‘You have a handkerchief and have it in your possession, you steal it.’ . . . There were fifty or sixty men around there.”</p> <p>The testimony of Joseph Carrier, a clerk of the defendant, on the same subject was as follows: “There wasn’t anybody else around there when I came to where he was excepting him. I asked him if he did n’t want to pay for what he had taken. I got no reply from him and I sent for the young Greek clerk (Míralos) and told him what I had seen. The Greek clerk talked Greek, which I could not understand. . . . Two women went by. . . . When Míralos came up I said to him, £I think he has taken a handkerchief from that box, will you speak to him?’ And George (Míralos) spoke to him. I called his attention that I thought the man (the plaintiff) had taken the handkerchief in these words: ‘I think that man has taken a handkerchief, ask him about it.’”</p> <p>The testimony of George Miralos, the Greek salesman, on the same subject was as follows: “Mr. Carrier called me and I came nearer and he say, ‘Ask this man if he took any handkerchief from this box that he did not pay for?’ I asked him if he took any handkerchief from this box and he say ‘Search me.’ . . . Mr. Joe Carrier told me all about it. I say, ‘You know what he said? ’ Well, he say, ‘Yes, he says I take a handkerchief,’ and he opened his coat and he say ‘Search me.’ ”</p> <p>At the conclusion of the evidence the plaintiff asked the judge to rule as follows: “If the salesman of the defendant (Carrier) acting in the belief that he was protecting the property of his employer, falsely and publicly accused the plaintiff of theft, in any words conveying that plain meaning, his act was that of his employer and makes the employer liable for all injuries to the plaintiff resulting naturally from his words.”</p> <p>The judge refused to give the ruling asked for, ruled that there was no evidence for the jury on the third count, and submitted the case to the jury on the first two counts only. The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract for $5,463.81, alleged to have been lent by the plaintiff to the defendant. Writ dated August 25, 1911.</p> <p>The defendant filed a declaration in set-off for $5,084.21, alleged to have been lent to the plaintiff by her.</p> <p>The case was heard in the Superior Court by Pratt, J., who disallowed some and allowed others of the items of both declaratians, and found for the plaintiff in the sum of $1,502.50; and the plaintiff alleged an exception, solely to the ruling on evidence stated in the opinion.</p>

<p> Small Loans. Pledge. Bills and Notes. </p> <p>The provision of St. 1912, c. 675, § 5, amending the small loans act, St. 1911, c. 727, § 17, that “ any loan made or note purchased, or endorsement or guarantee furnished by an unlicensed person ... in violation of this act shall be void,” does not make void in the hands of a bona fide purchaser a note given as collateral security for a note given in violation of the act.</p> <p>If a money lender, who, in a transaction within the provisions of the small loans act, St. 1911, c. 727, as amended by St. 1912, e. 675, and without being licensed as therein required, procured from a corporation as security for a loan to it of $200 its note for $500 indorsed for accommodation by several individuals and delivered the note to an associate who pledged it as collateral security for the associate’s personal note given to one, who, in good faith and with no notice or knowledge of the infirmity of the security, lent such associate money therefor, the note giving the pledgee power to sell the security at public or private sale upon non-payment of the note; and if, upon default in the payment of such note, the pledgee sold the corporation’s note for less than its face value at a public auction of which all parties to it had notice, both the pledgee and the purchaser having notice at the sale of all the foregoing facts, the purchaser at the sale, in an action on the note against the corporation and the indorsers, is entitled to recover the full amount of the note.</p>

<p> Fraternal Beneficiary Corporation. Mandamus. </p> <p>A hearing before the executive board of a fraternal beneficiary corporation, upon a complaint made to the Supreme Lodge that a reinstatement of a certain member by a subordinate lodge was contrary to the constitution and by-laws of the corporation, is quasi judicial in character and ought to be conducted in a spirit of impartiality, and a reasonable opportunity ought to be given to the subordinate lodge to learn the nature of the charges preferred and to present evidence and arguments in reply. Whether the hearing involved in the present case possessed these essential elements, it did not become necessary to decide.</p> <p>On a petition for a writ of mandamus to compel the Supreme Lodge of a fraternal beneficiary corporation to reinstate a subordinate lodge of which the petitioners were members, it appeared that the vote to expel the subordinate lodge had been passed by the executive board of the Supreme Lodge, that the constitution and by-laws of the order gave a right of appeal to the Supreme Lodge itself from all decisions of the executive board relating to grievances of the subordinate lodges, and provided that a decision of the executive board should be binding “unless the Supreme Lodge reverses it on appeal,” and that the petitioners for the writ of mandamus had failed to prosecute an appeal to the Supreme Lodge. The members of the executive board were members of the Supreme Lodge, but constituted a minority, a substantial majority of the board made being up of delegates of the subordinate lodges, and, although certain utterances of some members of the executive board at the hearing at which the vote of expulsion was passed were unbecoming in persons exercising a judicial function, they were not such as to disqualify them from acting as members of the Supreme Lodge upon an appeal from their decision. Held, that the petition for the writ of mandamus was brought prematurely by reason of the failure of the petitioners first to resort to an appeal to the Supreme Lodge; because it could not be said that this mode of relief furnished by the constitution and by-laws of the order would be an idle ceremony.</p>

<p>Practice, Civil, New trial, Setting aside by judge of his own finding, Exceptions. Deceit. Waiver. Payment. Damages, In tort. Words, "Verdict.”</p> <p>A judge who has heard a case without a jury and, having ruled as matter of law that the plaintiff could not recover, has made a finding for the defendant, has power afterwards, of his own volition and without the making of any motion, to set aside his finding on the ground that it was erroneous in law and to order a new trial.</p> <p>R. L. c. 173, § 112, in regard to the setting aside of verdicts in civil actions, has no application to the setting aside of the finding of a judge before whom a case was tried without a jury, the word “verdict” as used in the statute importing a trial by jury.</p> <p>R. L. c. 173, § 113, in regard to the granting of new trials upon motion in cases heard by a judge without a jury, does not limit the power of a judge to set aside of his own volition any finding made by him.</p> <p>"Where after a trial before a judge without a jury the plaintiff and the defendant each has filed a bill of exceptions which is allowed and the exceptions are heard together by this court, if neither bill states that it contains all the evidence and it is not certain that both bills contain all the material evidence, resort will be had by this court to both bills to ascertain the material facts.</p> <p>In an action for deceit, the proof of a false and fraudulent representation made by the defendant that he had an option to purchase certain shares of stock for $10,000, whereby he induced the plaintiff to lend him $7,000 and to take the shares as collateral security, whereas in truth the option held by the defendant was to buy the shares for $5,000, will entitle the plaintiff to recover, this being an intentional misstatement of a present material fact, which distinguishes the case from those where a representation was made as to a price that had been paid.</p> <p>Where in an action for deceit it appears that the plaintiff, by the false and fraudulent representation of the defendant that he had an option to purchase certain shares of stock for $10,000, was induced to lend the defendant $7,000 and to take the note of the defendant and his wife for that amount with the shares of stock as collateral security, whereas the option held by the defendant was to purchase the shares for $5,000, which was all that they were worth, if the plaintiff, when he discovered the fraud, did not exercise his right to rescind the contract by returning the note and the certificate of stock held as collateral, but retained the collateral and received substantial sums as interest on the note and waited a number of years before bringing the action for deceit, this shows an affirmation of the contract, but is not a waiver of the fraud by which it was induced.</p> <p>In an action for deceit, in which it was shown that the defendant by false and fraudulent representations induced the plaintiff to lend him a sum of money upon certain shares of stock as collateral, taking the note of the defendant and his wife for the amount of the loan, it is right for the trial judge to refuse to rule as matter of law that the plaintiff by taking the note accepted it in payment of the loan.</p> <p>Where in an action for deceit it appears that the plaintiff, by the false and fraudulent representation of the defendant that he had an option to purchase certain shares of stock for $10,000, was induced to lend the defendant $7,000 and to take the note of the defendant and his wife for that amount with the shares of stock as collateral security, whereas the option held by the defendant was to pinchase the shares for $5,000, which was all that they were worth, it is proper for the trial judge to adopt the well established rule of damages that the plaintiff is entitled to recover the difference between the real value of the thing at the time it was received and what its value would have been if the representation had been true instead of false, which in the present case was computed to be the difference between the amount of money lent by the plaintiff and the value of the collateral.</p>

<p> Unlawful Arrest. Agency. </p> <p>In an action against a corporation for unlawfully causing the arrest of the plaintiff in a civil action upon a false affidavit of the defendant’s president that the plaintiff was about to leave the Commonwealth, it appeared that the defendant was a creditor of the plaintiff and sent an agent, who was employed by the defendant “to look after the outside accounts,” to interview the plaintiff, that this agent reported to the defendant’s president that the plaintiff said that he could not pay his debt to the defendant but that he had some mines in Nova Scotia and was going there to look after them and that, if the agent would wait, he would send him the money. The plaintiff testified that he said nothing to the agent about going to Nova Scotia or anywhere out of the Commonwealth. The defendant’s president sent the agent to see the attorney of the company, and thereafter, acting on the advice of counsel, the defendant’s president signed and made oath to the affidavit on which the plaintiff was arrested. Held, that on these facts the plaintiff was entitled to have the jury instructed that, if the report of the agent to the defendant’s president that the plaintiff was about to leave the Commonwealth was false, the agent’s knowledge of its falsity was imputable to the defendant, and that, if the defendant acted on the advice of counsel in making the "arrest, but had failed to disclose to its counsel the true conversation between the defendant’s agent and the plaintiff, its acting upon the advice of counsel was no defense. Held, also, that the jury should have been instructed that, if a rational person, having the knowledge that the defendant had through its president and its agent, would not have had reasonable cause (as defined by the judge) to believe that the plaintiff intended to leave the Commonwealth, then, if the other material facts were proved, the plaintiff might recover.</p>

<p>Tort for personal injuries. Writ dated December 18, 1912.</p> <p>At the trial in the Superior Court before Stevens, J., the jury-returned a verdict for the plaintiff in the sum of $4,000 on October 31, 1913. On the same day a motion for a new trial was filed by the defendant, but no notice or copy of the motion was given to the plaintiff or the plaintiff’s counsel within three days after the return of the verdict as required by Rule 41 of the Superior Court. On November 8, 1913, the defendant asked the judge for further time within which to give the plaintiff’s counsel a copy of the motion for a new trial. This motion was granted, and the plaintiff excepted. A copy of the defendant’s motion for a new trial then was given to the plaintiff’s counsel. On November 13, 1913, the plaintiff filed a motion to dismiss the motion for a new trial. There was a hearing on the defendant’s motion for a new trial and on the plaintiff’s motion to dismiss, and the plaintiff asked the judge to make the following rulings:</p> <p>“The court has no power to grant further time for the giving of a copy of motion for new trial to the opposing counsel after-three days after expiration from the date on which the verdict was returned.</p> <p>“The power of the court to grant further time within which counsel filing a motion for new trial may deliver a copy of it to opposing counsel must be exercised by the court before three days have expired after the date on which the verdict was returned.”</p> <p>The judge refused to make these rulings. He denied the plaintiff’s motion to dismiss, and upon the defendant’s motion for a new trial made the following order: “Motion allowed and new trial granted unless the plaintiff elects within ten days to remit all damages above $2,000, the new trial to be limited to the amount of damages. This motion is allowed because the damages were grossly excessive, chiefly consisting of an injury to the right index finger.”</p> <p>The plaintiff excepted to the refusal of the rulings requested by him, to the denial of his motion to dismiss and to the order on the defendant’s motion for a new trial, and the judge reported the case for determination by this court.</p> <p>Rule 41 of the Superior Court is as follows: “No motion for a new trial shall be sustained in a civil action after verdict, either on account of any opinions or decisions of the judge, given in the course of the trial, or because the verdict is alleged to be against evidence or the weight of evidence, unless within three days after the verdict is returned, the counsel of the party complaining of the proceedings or of the verdict shall file a motion for a new trial, specifying the grounds of his complaint, and cause a copy of the motion to be delivered to the adverse counsel on the day the same is filed or within such further time as the court may allow. For cause the time for filing such motion may be extended by the court.”</p>

<p>Petition, filed on August 19, 1910, for the assessment of damages for the diversion of water from the petitioner’s pond by the defendant in the construction of its system of waterworks.</p> <p>In the Superior Court the case was tried before Fox, J. Material facts are stated in the opinion. At the close of the evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Bills and Notes. Negotiable Instruments Act. Corporation, Officers. Bankruptcy, Rights of trustee.</p> <p>Under the provision of the negotiable instruments act in R. L. c. 73, § 37, that “where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability,” the treasurer of a corporation, who signs a negotiable promissory note with his own name adding the word "Treasurer” followed by the name of the corporation, executing the note at a meeting of and by authority of the directors of the corporation, believing that he is executing a note of the corporation, and the note thereupon being given in payment of a claim against the corporation, is not liable personally on the note and has a good defense at law if he is sued on it.</p> <p>Under U.S.St. 1910, c. 412, § 8, a trustee in bankruptcy, when suing on a negotiable promissory note of which his bankrupt is the payee, has the rights that an attaching creditor would have, which can be no greater than those of the bankrupt.</p>

<p>Trust, Construction, Trustee’s accounts. Words, “ Annuity.”</p> <p>In a will, proved in 1885, the testator gave to F, a woman, who was a trusted and faithful inmate of his household to whom all members of his family had been and were much attached and were greatly indebted for many attentions depending more upon intelligent affection than upon hired service, the sum of $10,000, and placed in the hands of trustees “ a sufficient sum in trust to invest to pay to” her $1,200 a year during her life, and, the will read, “ at her decease, I order the principal, required to provide this annuity . . . to be added” to a trust fund created by the will for the benefit of the testator’s niece. The will also provided that, if F did not survive the testator, "my will is that $25,000 be added to the ” trust fund for the benefit of the niece. The will contained a residuary clause disposing of all the testator’s property not disposed of by its other provisions. The executor of the will set apart $32,000 as a principal sum sufficient in the exercise of a wise and conservative judgment to provide the $1,200 a year for F. F lived for twenty-eight years, and during that period there accumulated from that fund, in excess of the $1,200 a year, income amounting to $5,000. On the death of F, the trustees sought instructions as to what disposition should be made of the principal sum and the accumulated income. Held, that all that was given to F beyond the legacy of 810,000 was an annuity of $1,200; that the entire principal set apart by the executor to produce that annuity belonged on the death of F to the trustees for the niece; and [that the excess income, not being disposed of by the will, should be paid to the administrator with the will annexed of the estate of the testator not already administered, to be distributed in accordance with the provisions of the residuary clause of the will.</p> <p>In the foregoing suit in equity for instructions, it also was stated that the trustees of the fund set apart to pay the annuity to F should have kept separate accounts of the principal and of the accumulation of excess income.</p>

<p>Practice, Civil, Venue. Trustee Process. Statute, Repeal.</p> <p>Since St. 1904, c. 320, providing that "An action against a city, town, person, or corporation to recover for injury or damage received in this Commonwealth by reason of negligence . . . shall be brought in the county in which the plaintiff lives or has his usual place of business, or in the county in which the alleged injury or damage was received,” such an action cannot be brought in any county other than is specified in that statute even though it be brought by trustee process and a trustee named in the writ has a usual place of business in such other county, because that statute repealed inconsistent provisions of R. L. c. 189, §§ 1, 2, which provided that such an action might be brought by trustee process and, if so brought, should be brought in the county where a trustee dwelt or had a usual place of business.</p>

<p>Contract, with a declaration in two counts, the first count being upon orders of one Jacob Luff upon the defendant, hereinafter described, and the second count being upon an account annexed for $375, "balance of amount due for material, and labor for painting.” Writ in the Municipal Court of the City of Boston dated April 1, 1912.</p> <p>On appeal to the Superior Court, the case was tried before Aiken, C. J. It appeared that the plaintiffs were partners. One of them testified that Jacob Luff, a builder, sought to make an agreement with them for the painting and paper-hanging of apartment houses in Belmont; that they would not enter into an agreement until they received security that they would be paid; that Luff took them to the defendant’s office and two orders there were written and were accepted by the defendant. These were the orders which were declared on in the first count of the declaration. The first directed the defendant to pay to one of the plaintiffs $200 “in the following order: One hundred fifty ($150) dollars out of my completion payment on my mortgages on Lot 18 Hull Street, Belmont, Massachusetts, and the balance of fifty ($50) dollars, out of the thirty-three (33) day after completion payment, on said mortgage, and charge the same to my account.” The acceptance of the order by the defendant was in the following terms: “I accept the above order on the following conditions only: When Jacob Luff shall earn his completion payment on Lot 18 Hull Street, Waverley, mortgage, as per construction mortgage agreement I will pay M. Swartzman, the sum of One hundred fifty ($150) dollars. And when said Luff shall earn his 33 day after completion payment on said Lot, as per said agreement, I will pay M. Swartzman the balance of Fifty ($50) dollars.”</p> <p>The second order and its acceptance were in the same terms as the first, except that they referred to different houses and were for the sum of $500, of which $350 was to be paid from the “ completion payment,” and $150 out of the “thirty-three day after completion payment.”</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. On all the evidence, the plaintiffs, or either of them, are not entitled to recover against the defendant.</p> <p>“2. On all the evidence, the defendant is entitled to a verdict against the plaintiff Levin.</p> <p>“3. The plaintiffs, or either of them, are not entitled to recover because the orders sued on were accepted upon certain conditions, and there is no evidence that said conditions were fulfilled.</p> <p>“4. The plaintiffs are not entitled to recover because the acceptances of the orders were conditioned upon the buildings being completed and there is no evidence that said buildings were completed.</p> <p>“5. The plaintiffs, or either of them, are not entitled to recover because the acceptances relied upon of the orders in suit were conditioned upon Jacob Luff’s earning the completion payments in accordance with the construction mortgage agreement, and there is no evidence that said Luff earned said payment under said agreement.</p> <p>“6. The plaintiffs, or either of them, are not entitled to recover on the second count of their declaration because it appears that they made a contract with one Jacob Luff to do the work in question and there were no contractual relations between the plaintiffs, or either of them, and the defendant, except such as may arise out of the acceptance of the orders dated December 18th, 1911.”</p> <p>The rulings were refused. The jury found for the plaintiffs in the sum of $397.26; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, For alternative relief, To remove cloud on title, To redeem from tax sale, Laches. Tax, Assessment for street watering. Cemetery. Equity Pleading and Practice, Bill, Decree. Words, “ Finding.”</p> <p>It is not a valid objection to a bill in equity that the plaintiff seeks to remove a cloud from the title to certain land created by what he alleges to have been a sale for the collection of a tax illegally assessed, and also, in case the sale should be declared to have been valid, seeks to redeem the land from the sale in accordance with St. 1909, c. 490, Part II, § 76.</p> <p>A bill in equity, which was filed in June, 1911, by a private cemetery corporation to remove a cloud upon its title to the cemetery alleged to have been created by a sale in August, 1905, for the collection of a tax assessed illegally in 1902, and which contains appropriate allegations and prayers for redeeming the land from the tax if the sale shall be adjudged to have been valid, is brought within the six years allowed by R. L. c. 13, § 75, as amended by St. 1905, c. 325, § 3, and is not barred by loches although the purchaser at the sale paid taxes assessed to the plaintiff for the years 1904 and 1905, and taxes upon the premises were assessed to such purchaser in 1906 and 1907, and he paid them.</p> <p>The exemption of cemeteries from general taxation by St. 1909, c. 490, Part I, § 5, cl. 8, does not exempt them from local assessments for special advantages arising out of public improvements.</p> <p>A private cemetery corporation is subject to a tax assessed upon its cemetery under R. L. c. 26, §§ 26,27, for street watering if the amount of the tax assessed upon the property is not in excess of the benefit conferred upon the property by the street watering.</p> <p>It cannot be said as a matter of law that the real estate of a private cemetery corporation is not benefited by the watering of streets adjacent to the cemetery.</p> <p>In a suit in equity involving the question, whether a tax for street watering assessed to a private cemetery corporation upon its cemetery is a legal assessment, where there is no question as to the propriety of the amount of the tax, the question, whether a benefit was conferred upon the cemetery by the street watering, is one of fact to be determined upon the evidence. In this case a finding, which was construed to be that no such benefit was conferred, was held not to have been clearly wrong.</p> <p>In a report made by a judge of the Superior Court in a suit in equity brought by a private cemetery corporation for the removal of a cloud upon its title to its cemetery alleged to have been created by a sale for the collection of a tax for street watering purposes illegally assessed because the land had not been benefited by the watering of the streets, the judge, after a detailed statement of facts in a report, concluded as follows: “Upon the foregoing facts a decree is to be entered in favor of the plaintiff for the cancellation of the said deed, upon the ground that the tax deed . . . was invalid. ... If my order is correct, a decree is to be entered in accordance with the finding, with costs; otherwise such decree is to be entered as justice and equity may require.” Held, that the word “finding” must be given its ordinary meaning of the ascertainment of a fact in a judicial proceeding; and that as a matter of interpretation the language quoted must be held to mean that the judge found as a fact, in view of all the circumstances, that no benefit was received by the land from the street watering.</p> <p>In the foregoing case, the rescript directed that a decree be entered for the plaintiff, “unless within thirty days ... on motion by the defendant to the judge who heard the case, further hearing is granted on the ground that the report previously made was not intended as a finding that as a fact the plaintiff’s cemetery was not benefited by the street watering.”</p>

<p>Practice, Civil, Abatement, Trial by jury, Exceptions. Workmen’s Competition Act. Constitutional Law.</p> <p>Where in an action of tort, in which the plaintiff has claimed a trial by jury, the defendant files a plea in abatement, and the plaintiff proceeds to take part in a hearing before the presiding judge upon the plea in abatement without objection and without insisting upon a trial by jury as to the questions of fact raised by the plea, and the judge finds the facts to be as there alleged and sustains the plea as a bar to the action, the plaintiff has waived his right to have those facts passed upon by a jury, and no question in regard to his constitutional right to a trial by jury is involved.</p> <p>By St. 1911, c. 751, Part I, § 5,.an employee of a subscriber under the workmen’s compensation act waives his right of action at common law to recover damages for personal injuries, unless he gives his employer at the time of his contract of hire notice in writing that he claims such right; and, if the employer was at the time of the employment a subscriber, the waiver is not affected by ignorance of this fact on the part of the employee, and it is immaterial whether or not the employer gave to the employee the notice required by St. 1911, c. 751, Part IV, § 21, as amended by St. 1912, c. 571, § 16, that he has provided for the payment of compensation to injured employees under the act, the giving of such a notice being required for other purposes and having no connection with an employee’s waiver of his right to sue his employer at common law.</p> <p>If evidence, which was excluded by the presiding judge at a trial for a wrong reason, was irrelevant and ought to have been excluded, an exception to its exclusion will be overruled.</p> <p>Where the justices of this court have given their opinions, under c. 3, art. 2, of the Constitution, that a certain statute, if enacted, would be constitutional, and the statute itself afterwards comes before the court in a judicial controversy in which the question of its constitutionality is raised and is argued by counsel, the question is treated as an open one, the previous expression of the opinions of the justices not being an adjudication to which the rule of stare decisis applies. I</p> <p>The provision of the workmen’s compensation act contained in St. 1911, c. 751, Part I, § 5, that an employee of a subscriber under that act “shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right,” as interpreted by this court to be an absolute and unconditional provision not dependent upon knowledge by the employee or upon notice to him that the employer was a subscriber at the time of the contract of hire, is constitutional.</p> <p>Where an injured workman, who is employed by a subscriber under the workmen’s compensation act and has waived his right of action at common law, makes no claim under the act, but brings instead an action at common law against his employer, the insurer under St. 1911, c. 751, Part III, § 5, as amended by St. 1912, c. 571, § 10, may notify the Industrial Accident Board, who thereupon must call for the formation of a committee of arbitration, this being a case where the insurer and the injured employee have failed to reach an agreement in regard to compensation under the act.</p> <p>Where under the workmen’s compensation act a committee of arbitration was formed and made an award in favor of an injured employee, and a claim for review by the Industrial Accident Board was filed by the employee but after-wards was withdrawn by him before any hearing, and, upon motion of the insurer, a decree has been made by the Superior Court for the payment of compensation in accordance with the report of the committee of arbitration, under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, the employee has no right of appeal from such decree.</p>

<p> Workmen’s Compensation Act. </p> <p>Although under the workmen’s compensation act there can be no appeal from a finding of the Industrial Accident Board if there was any evidence to support it, yet, where all the evidence is reported, the question of law whether the evidence was sufficient to warrant the finding may be presented for decision by this court.</p> <p>Upon the question of law, whether a finding made under the workmen’s compensation act by the Industrial Accident Board, that a sister of a deceased employee was wholly dependent upon such employee for support, was warranted by the evidence, all of which was reported, where the only doubt whether the finding was warranted was created by certain vague and unsatisfactory evidence in regard to the interest of the alleged dependent sister in a house in which these two sisters and a third sister lived together, from which the Industrial Accident Board well might have concluded that the interest of the alleged dependent sister in the house, even if it was a life estate, was of little if any value for use or sale and for that reason had practically no bearing on the question of her dependency, it was held, that it could not be said as matter of law that such a conclusion was erroneous.</p>

<p>Equity Pleading and Practice, Master’s report. Contract, In writing.</p> <p>In a suit in equity, where a master’s report does not state the evidence, the findings of the master cannot be reversed unless wrong as matter of law, and in the present case a finding by a master, that the state of an account between the parties had not been changed by an announcement made by the plaintiff to the defendant that he intended to charge off a counter claim of the defendant against his own claim, was held to disclose no error of law.</p> <p>Where the parties to a contract without fraud or mistake have reduced it to writing in language that is not obscure, it is held to express the final conclusion reached, and all previous and contemporaneous oral discussion and written memoranda are assumed to have been rejected or to have been merged in it. Thus in a contract in writing, by which G purchased from T the controlling interest in a certain corporation, the stipulation, “ G agrees that so long as he and T are stockholders in said corporation T shall continue in the employ of the corporation,” cannot be varied or amplified by oral evidence in regard to matters which were agreed upon in the negotiations that resulted in the contract.</p>

<p>Trustee Process. Equity Jurisdiction, To reach and apply equitable assets. Partition, Funds in hands of commissioner.</p> <p>The interest of one of the tenants in common of certain real estate, which was sold by a .commissioner appointed by the Probate Court under R. L. c. 184, §§ 31, 47, to make partition of it, in the proceeds from the sale of such real estate in the hands of the commissioner is not subject to attachment by trustee process under R. L. c. 189, § 31, cl. 3, which provides that “no person shall be adjudged a trustee ... by reason of having money in his hands as a public officer, for which he is accountable to the defendant merely as such officer.”</p> <p>An interest in a fund, derived from a sale of real estate upon a petition for partition, which is in the hands of a commissioner appointed in such proceedings, cannot be reached and applied by a suit in equity under R. L. c. 159, § 3, cl. 7, to the payment of a debt due from one of the tenants in common of the real estate so sold, as that statute does not extend to a fund in the custody of the law.</p>

<p>Practice, Civil, New Trial, Setting aside verdict, Verdict. Damages, Excessive.</p> <p>The provision of St. 1911, c. 501, that whenever a verdict is set aside and a new trial is granted, the judge “ granting the motion for the new trial shall file a statement setting forth fully the grounds upon which the motion is granted,” does not take away nor in any way diminish the discretionary power of a presiding judge to set aside a verdict on a motion in writing of a party filed under R. L. c. 173, § 112, and does not enlarge in any way the jurisdiction of this court to review the exercise of such discretionary power.</p> <p>This court, in considering whether the discretionary power of a presiding judge in setting aside a verdict was exercised properly, will consider only whether , a careful examination of the reasons of the judge, filed in compliance with St. 1911, c. 501, discloses any abuse of judicial discretion or any overstepping the limits of his jurisdiction or failure to comply with the reasonable regulations of the statutes.</p> <p>Where a presiding judge, after a verdict had been returned for a plaintiff in a large amount, made an order that, unless the plaintiff should remit a substantial amount named, the verdict should be set aside and a new trial granted upon the question of damages only and also ordered that a special finding of the jury that no damages should be awarded upon a certain claim asserted by the plaintiff should “stand and no new trial be had upon that issue,” this court, in sustaining the judge’s exercise of his discretion in making the order in regard to the setting aside of the verdict, held that the order of the judge that the finding for the defendant on a special issue should stand was warranted and did not conflict with the order in regard to setting aside the general verdict.</p>

<p>Bill in equity, filed in the Superior Court on June 21, 1909, for the foreclosure of a trust mortgage on street railway property formerly owned by the defendant Bristol County Street Railway Company and later conveyed by receivers of that company to persons who conveyed it to the defendant Taunton and Pawtucket Street Railway Company, as stated in the opinion.</p> <p>The suit was referred to Thomas W. Proctor, Esquire, as master. After the filing of his report, the Taunton and Pawtucket Street Railway Company moved for a recommittal of the report to the master, and filed objections and exceptions to the report. After a hearing by Pierce, J., an interlocutory decree was made denying the motion to recommit the report and overruling the exceptions to the report and confirming the report, and thereafter the same defendant moved to dismiss the suit on the ground that the Superior Court had no jurisdiction of it. The motion was heard and denied by Pierce, J., who thereupon reserved and reported the case for determination by this court.</p> <p>The material facts are stated in the opinion.</p>

<p>Contract against the maker and indorsers of a negotiable promissory note of one Ettel Nurenberg for $1,583.35, payable in quarterly instalments of $50 to Max Sokolowitz and indorsed by Harvey Nurenberg and Samuel Nurenberg and by Max Sokolowitz in blank. Writ in the Municipal Court of the City of Boston dated August 31, 1912.</p> <p>On appeal to the Superior Court the case was tried before White, J. The defendant Sokolowitz moved to amend his answer by alleging "that prior to the indorsement of the note in question in this suit the plaintiff and defendant mutually agreed that the defendant indorse the same without recourse to him in any event, that said indorsement upon said note was obtained by the plaintiff through false and fraudulent representations.” The motion was denied. The bill of exceptions recites:</p> <p>“Signatures of the maker and indorsers of said note having been admitted, the plaintiff offered in evidence said note and certificates of protest and rested.</p> <p>“The defendant offered evidence tending to show the defendant, Max Sokolowitz, indorsed said note, but before and at the time of the indorsement, it was agreed, orally, that said indorsement was to be without recourse to him.”</p> <p>The defendant Sokolowitz offered no further evidence and the judge ordered a verdict for the plaintiff in the sum of $407.24. The defendant Sokolowitz alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Information in equity, filed on March 11, 1912, by the Attorney General at the relation of James M. Prendergast, Herbert S. Johnson and Robert A. Woods against Joseph Bedard, Joseph Shaheen, William D. Haywood, Joseph J. Ettor, William Yates, William Trautmann and the Lawrence Trust Company.</p> <p>Allegations of the information were in substance as follows:</p> <p>For many weeks the many .thousand operatives employed in the textile mills at Lawrence had been on a strike and during that period, because of lack of wages, a large number of them had come to be in suffering and distress for want of proper food and clothing. The personal defendants were leaders of the strike, or members of a “strike committee,” organized for the purpose of supporting the strike, and, among other things, of raising funds to be applied for the support of those strikers who were suffering and in want. The defendant Bedard was the secretary and the defendant Shaheen was the treasurer of the strike committee.</p> <p>For the purpose of raising a fund to be applied for the relief of such strikers as were in want, the personal defendants made and issued appeals to the public generally for contributions to the committee or its executive officers, representing that the funds would be applied by the committee and officers to the support of such of the strikers and their families as were in need, suffering and want. An appeal widely circulated read as follows:</p> <p>“No.</p> <p>“Help your fellow workers who need bread and your support.</p> <p>“Twenty-five thousand men, women and children, employed in the textile mills of Lawrence, mostly employees of the American Woolen Co. are out on strike against a reduction in wages that at best was only an average of five to six dollars a week.</p> <p>“The textile industry, especially the wool portion that receives the highest protection, pays the lowest wage scale of any industry in America.</p> <p>“Workers have dared to rebel against conditions that were unbearable. Because they have dared to assert their manhood and womanhood and determinedly insisted for an opportunity to live by their labor, hired military hessians have been sent to Lawrence to terrorize the workers into going back to work.</p> <p>“We workers, who have done our utmost share to clothe the world, are now asking the world of labor and all those who sympathize with the cause of the workers for bread.</p> <p>“Contribute liberally. It is our fight to-day, who knows, it may be you to-morrow who will need support.</p> <p>“Issued by authority of the Textile Workers’ Strike Committee.</p> <p>Joseph Bedard,^ Secretary,</p> <p>9 Mason Street,</p> <p>Lawrence, Mass.</p> <p>Name Address Amount”</p> <p>Many inhabitants of this Commonwealth and of other States, including the relators Prendergast and Johnson, being moved by such appeals and by sympathy for the poverty and suffering of the strikers and their families, and with a purpose and desire of aiding and benefiting such destitute persons, contributed for that purpose various sums of money amounting to many thousands of dollars, and delivered such sums to the defendant Bedard and to the other personal defendants to be held and used by them in trust to apply for the relief of the destitute and needy among the strikers and their families according to the tenor of the appeal above set out and other similar appeals. The defendant Lawrence Trust Company was the depositary of such funds.</p> <p>The fifth paragraph of the information was as follows: “5. The plaintiff is informed and believes, and upon information and belief avers, that all the personal defendants, conspiring and agreeing together, have used substantial portions of said fund contributed as aforesaid for purposes entirely different from those for which the fund was donated by the contributors, and for purposes other than the proper promotion of the objects of the trust on account of which said contributions were made and received; that said fund has, in part at least, been improperly used for the private and personal uses of the personal defendants and their associates; that the personal defendants, or some of them, have drawn stuns from said fund as salaries — a purpose for which they had no right to appropriate the same; that among other improper uses substantial amounts have been contributed for the board and other private expenses of the defendant Ettor, now in confinement in the jail at said Lawrence; large amounts have been paid for the transportation, to the city of New York and other cities, of numbers of children for uses in connection with appeals for further contributions to said fund; sums have been paid to counsel and others engaged in defending said Ettor and others against criminal charges; and that large amounts have been turned over to an organization known as Industrial Workers of the World; all of said uses being contrary to the intent and purposes for which said fund was contributed, and in violation of the trust upon which said fund is held. There is danger that said fund, and other contributions thereto, may be further appropriated to uses other than those for which it is contributed, and further dissipated in illegal, improper expenditures, in violation of the trust.”</p> <p>The information further alleged a demand for an accounting and a failure to render an adequate accounting.</p> <p>The prayers of the information were for temporary and permanent injunctions preventing the use of the fund for other purposes than those for which it was given, for a receiver to take charge of the fund, and “that an account be taken in relation to said trust fund and the amount thereof, and that an inquiry be made as to the extent of improper and illegal disbursements from said fund by the defendants, or any of them, or others controlling the same, and that the said defendants be made to account for and restore to said fund all sums improperly abstracted therefrom, and pay over to such receiver such amounts of said fund as shall have been found to have been wrongfully taken therefrom.”</p> <p>The personal defendants demurred. The demurrers were heard by Morton, J., and were overruled. The defendants appealed.</p> <p>The case was referred to Winfield S. Slocum, Esquire, as master. He filed a report, and, upon a recommittal, a supplemental report. His findings as to the strike in Lawrence, the description of the personal defendants’ official positions and the form of appeals for funds by the defendants were substantially in accordanee with the allegations of the information. Other material findings were as follows:</p> <p>The strike in the Lawrence textile mills began on January 12 and ended on March 16, 1912. During the period of the strike the strike committee, described in the bill, received $62,564.40, “a large portion, but not all,” of which was “received ... in answer to the appeal ” described on pages 379, 380.</p> <p>The supplemental report of the master contained the following findings: "After the receipt of such funds they were so commingled and used that I am unable to find or state for what they were contributed excepting the following: During the period of the strike, meetings were held and money raised by the Socialists of Boston for general strike purposes. The amount of such funds so contributed was $3,316.01. This amount was paid in and mingled with the general fund.”</p> <p>“All stuns received from whatsoever source were mingled in one common fund.</p> <p>“The offices of the strike committee were at No. 9 Mason street, Lawrence. In these offices correspondence was received and sent, the appeals for help were distributed, money was received and disbursed, the books of account were kept, and the financial business of the strike conducted. The defendant Shaheen was treasurer of the strike committee and was responsible for its funds. He signed checks, went to said headquarters nearly every day, and he also made some of the deposits in the bank. All checks were signed by Shaheen as treasurer, and by the defendant Joseph Bedard as financial secretary. Bedard was in general charge from the beginning of the strike to its end, was the financial secretary, and in charge of the headquarters. Funds in general were received by him, and were in his custody and deposited by him in bank. The defendants William Trautmann and William Yates were sent to Lawrence from the national headquarters of the Industrial Workers of the World because of their experience in affairs of this kind. Trautmann came about February 10, and took charge of and established the system of bookkeeping. He received some of the money, made some of the deposits in bank, and attended to and supervised the correspondence. Yates was secretary of the National Industrial Union of Textile Workers. He was chairman of the strike committee at Lawrence, and was there from January 29 to the end of the strike. To some extent he also attended to the correspondence. . . .</p> <p>“A large part of the money was deposited in the Lawrence Trust Company, in the name of the Industrial Workers of the World, Local No. 20. Other sums were not deposited in bank, but were kept or used as cash.</p> <p>“I find that all of these defendants were responsible for such commingling of funds.</p> <p>“They failed also to-show, in respect to such funds in their possession or subject to their control, what amounts were contributed for charitable purposes and what amounts were contributed for other objects.”</p> <p>Of the funds so received, the master found that $18,695.86 was expended for other than charitable purposes. Of this sum, $2,800 was represented by a check payable to one Vincent St. John of Chicago, Illinois, who was secretary of the national organization of the Industrial Workers of the World, and $3,000 by a check payable to one Thomas Powers, a textile worker of Providence, Rhode Island, both checks being given to Yates. The master found Yates responsible for these two sums, and found Shaheen, Bedard and Trautmann responsible for the entire $18,695.86.</p> <p>The master also found that of the foregoing sum $10,800 was deposited by Bedard in the bank in his own name, and that from that account he drew the above described checks for $2,800 payable to St. John and $3,000 payable to Powers, which were given to the defendant Yates, and also a check for $5,000 payable to one Desire Steuer of Lawrence.</p> <p>The master also found that there was no evidence that any of the moneys received by the committee were received or paid to the defendants Ettor or Haywood.</p> <p>Exceptions of the defendants to the first report of the master were waived by them.</p> <p>The defendants Bedard and Shaheen filed exceptions to the supplemental report of the master, the first two grounds in both exceptions being the same. Only the exceptions of Shaheen contained a third ground. Shaheen’s exceptions were upon the following grounds:</p> <p>“ 1. That the master failed to credit the total amount expended for other purposes than relief with the $3,316.01 contributed by the Socialists for general purposes.</p> <p>“2. The refusal of the master to rule, as requested, that the total amount expended for purposes other than relief should be credited with the excess expenditures amounting to $2,886.40.</p> <p>“3. That he [Shaheen] is responsible for the $10,800 deposited by Joseph Bedard in the Lawrence Trust Company and for the drafts issued thereon.”</p> <p>The exceptions were heard by Loving, J. The record states an interlocutory decree overruling Shaheen’s exceptions, but states ' no decree as to those of Bedard.</p> <p>A final decree was entered, declaring “that said defendants Bedard, Trautmann, and Shaheen are jointly and severally liable to account for the sum of $18,695.86, which was found by the master’s report to have been paid out of strike funds for purposes other than relief, less the sum of $3,316.01 found to have been contributed for general purposes, leaving a balance of $10,379.85; also that said defendant Yates is liable to account for the sums of $2,800 and $3,000, paid out of strike funds and not accounted for, as found by the master;” and ordering “that the said defendants, Bedard, Trautmann, and Shaheen pay into the hands of the clerk of this court, to be held by him subject to the further order and direction of this court, said sum of $15,379.85, together with interest thereon from the date of the filing of the bill in this cause until fully paid; and that the defendant Yates pay into the hands of the clerk of this court, to be held by him, subject to the further order and direction of this court, said sum of $5,800, together with interest thereon from the date of the filing of the bill in this cause until fully paid; and that the plaintiff also recover his costs against said defendants Bedard, Yates, Trautmann, and Shaheen.” The bill was dismissed as against the defendants Ettor and Haywood and the Lawrence Trust Company, with costs.</p> <p>The defendants Yates, Bedard and Shaheen appealed.</p> <p>The case was submitted on briefs.</p>

<p>Italian Catholic Cemetery Association. Cemetery. Corporation, Cemetery. Constitutional Law. Equity Jurisdiction, To relieve from results of fraud. Mandamus. Equity Pleading and Practice, Demurrer.</p> <p>St. 1913, c. 292, confirming and making valid the by-laws of the Italian Catholic Cemetery Association, which had been incorporated in 1905 under R. L. cc. 78, 123, and unauthorized acts of its incorporators in voting to issue and in issuing shares of capital stock and fixing the par value of the stock and the rights of holders thereof, occasioned no breach of contract nor impairment of lawfully vested rights of property, and is constitutional.</p> <p>A bill in equity by stockholders in a corporation, alleged to have been brought on behalf of the plaintiffs and all other stockholders who might wish to join therein, may be maintained against the corporation and officers and others in control of its affairs for an accounting as to shares of stock issued to the individual defendants as a gratuity, dividends declared and paid on such shares, moneys received and disbursed by the defendants in the management of the corporation for which, although requested, they have refused to account, and fees and compensation paid to themselves in excess of reasonable emolument or rightful demands.</p> <p>If, after the incorporation of a cemetery corporation in 1905 under R. L. cc. 78, 123, the incorporators illegally issued and sold capital stock for cash and then adopted by-laws excluding the purchasers of such stock from participation in the business affairs of the corporation and perpetuating its control in themselves and their nominees, and in 1913 the Legislature by a special act confirmed and made valid the issue of stock and the by-laws, the persons to whom the stock was issued thereafter have the rights of stockholders, and, if such rights are not recognized and those in control of the corporation refuse to call meetings of. the corporation for the choice of officers and the adoption of by-laws adapted to the reorganized association, no longer composed of the original incorporators ' • and their successors, but of stockholders, the remedy is by a petition for a writ of mandamus, and not by a bill in equity.</p> <p>A single demurrer to an entire bill in equity, which contains allegations entitling the plaintiff to some of the relief which he seeks, will be overruled, although other relief sought is not a proper subject for a bill in equity.</p>

<p>Negligence, Trespasser, In use of electricity. Tree.</p> <p>If the son of the owner of certain land, while engaged in removing browntail moth’s nests from a tree on the land, reaches with a pole across the boundary of the land to cut off a nest on a bough of the' tree which overhangs land of an adjoining owner, he is not a trespasser, and if, while he is in the exercise of due care, the pole comes in contact with an uninsulated wire carrying a current of electricity of dangerous voltage negligently permitted by an electric power company to pass through the branches of the tree, and he is killed, an action may be maintained by the administrator of his estate against the company for causing his death.</p> <p>In an action by an administrator against an electric power company to recover for the death of the plaintiff’s intestate, who was killed while removing browntail moth’s nests from a tree on his father’s land, by a pole which he was using coming in contact with wires of the defendant on adjoining land, there was evidence tending to show that the plaintiff’s intestate was standing on a large branch in the tree and near its trunk, that the pole was long, shod with metal and furnished with a metal cutter from which a wire ran to a handle by which he operated it; that the line of wires maintained by the defendant carried a current of thirteen thousand volts, which was extremely dangerous to life, that the wire nearest the tree was not insulated, that the ends of the branches of the tree were moist with melted and unmelted snow, that a current of electricity passed from the uninsulated wire through the ends of the branches of the tree to the intestate, giving him a shock which caused him to give a jerk to the pole, so that it either moved or fell and came into direct contact with the defendant’s wire, the full current from which then passed into and through the intestate’s body, killing him. Held, that findings were warranted that the intestate was in the exercise of due care and that the defendant was negligent in the manner in which it maintained its wire.</p> <p>It seems that the branches of a tree that overhang the land of a person other than the owner of the land in which the tree is growing may be cut off by such other owner to the extent that they overhang his land, but that, if he does not exercise this right, the product of the branches belongs to the owner of the trunk of the tree, who also must keep such branches from creating a nuisance.</p>

<p>Two actions of tort, the first for conscious suffering and the second for causing the death of Hannah Levy, the plaintiff’s testatrix, who was alleged to have been thrown to the ground as she was alighting from an open street railway car of the defendant on August 1, 1908, by reason of “gross negligence” of the defendant’s servants and agents in the manner in which they “started, stopped and operated” the car. Writs dated September 15, 1908.</p> <p>In the Superior Court the cases were tried together before Aiken, C. J. In his opening statement to the jury, counsel for the plaintiff stated that the deceased, while a passenger on one of the defendant’s open cars on Beacon Street, Boston, travelling toward Boston from Brookline and bound to a point near the corner of Maitland and Beacon streets, signalled for the car to stop just before the car reached Maitland Street by pressing an electric push button on the stanchion of her seat; that she thereupon heard a bell ring at the front of the car; that the car Immediately began to slow down and stopped at the usual stopping place, and that, just as the plaintiff’s testatrix was about to step from the running board of the car to the ground, the car started up again, throwing her to the ground.</p> <p>Material facts which the evidence tended to prove are stated in the opinion.</p> <p>At the close of the evidence and before the charge to the jury, the plaintiff’s counsel stated to the Chief Justice that the plaintiff contended, and requested to be permitted “to argue to the jury that, even if the car had not come to a full stop, yet if the plaintiff’s testatrix was injured by its being carelessly started up while she was alighting, it is a question of fact for the jury whether under all the evidence she was in the exercise of due care and entitled to recover; ” also that the plaintiff contended, and desired to argue, “that the plaintiff is not necessarily bound to establish that the car came to a full stop before the deceased alighted;” also that the plaintiff contended and requested to be permitted “to argue to the jury that if the deceased pushed the electric button in ignorance of the fact that it was not working and heard a bell ring at the front of the car and the car came so nearly to a stop at a regular stopping point that she could reasonably and prudently step off, and she believed that the car was stopping in response to her signal, and stepped off, and at the same instant the motorman, without any signal from the conductor and without looking to see whether any one was getting off, started up the car and this threw the deceased to the ground and was the immediate and direct cause of her death, the plaintiff, if otherwise entitled to recover, would not be precluded therefrom by the fact that the car had not come to a full stop.”</p> <p>The Chief Justice, subject to exceptions by the plaintiff, refused to permit the plaintiff’s counsel to argue as he requested, and also refused requests for rulings based on the contentions he stated, and instructed the jury that, if the plaintiff’s testatrix was attempting to alight from the car before it had come to a stop, the plaintiff could not recover.</p> <p>The jury found for the defendant in both cases. The plaintiff thereupon moved for a new trial of the cases, and, subject to exceptions by the defendant, the Chief Justice granted the motion, making the following statement in his order: “In the submission of the above named cases to the jury, I so narrowed the issue that the plaintiff was deprived of opportunity to have the jury pass upon aspects of the. case which in my opinion were open on the pleadings and the evidence.”</p> <p>Thereafter exceptions were filed, presented to this court and dismissed, by a decision reported in 216 Mass. 545, on the ground that they were presented prematurely.</p> <p>Thereafter the Chief Justice reported to this court for determination the questions of law presented by the order setting aside the verdicts and by the rulings made in connection with the order and by the other rulings of law in the cases, as shown in the record, stating that he was of the opinion that they ought to be determined before any further proceedings in the Superior Court, and that all further proceedings in the Superior Court except such as were necessary to preserve the rights of the parties ought to be stayed until they were determined.</p> <p>The cases were submitted on briefs.</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 case had been presented to the Industrial Accident Board upon an agreed statement of facts substantially as follows:</p> <p>The employee, Arthur Howard, was injured on August 1,1912. He had been employed since July 22,1912, by the Edison Electric Eluminating Company of Brockton, and his employment was as a tree trimmer for the company. The foreman of this work for the Edison Company was one Kennedy. On the morning of August 1, 1912, the trees on which trimming was to be done were wet because of a heavy rain the night before. On that morning, Howard got the team in which the tree trimmers went around to their work, and went to Kennedy’s house and got Kennedy. While they were waiting to begin work another tree trimmer employed by the Edison Company, one Osborne, joined them. Rain then began again. When the rain had ceased, Kennedy, Howard and the other men drove off, following the lines of the Edison Company and inspecting the lines, and did no trimming. After going to the end of the line, they came back to the corner of School and Canton Streets in the town of Stoughton. Kennedy then said that there were some dead limbs upon a tree standing inside the sidewalk on the lawn of the Catholic Church. There were no wires of the Edison Company through the tree or on that side of the street. Kennedy told the men to climb the tree and lop off these dead limbs. One of the men took a ladder belonging to the Edison Company and placed it against the tree. Howard with two of the other men ascended the tree. While they were engaged in the work of lopping off the limbs, Howard slipped and fell from the tree and was injured. This injury totally incapacitated him for work.</p> <p>The purpose of the Edison Company in employing men to trim trees was to keep its" wires clear. The Edison Company had been in the habit of employing the tree warden of the town of Stoughton as the foreman over its gang of tree trimmers, because the company was not allowed to trim any shade trees in the town unless the tree warden was there to supervise such trimming. The company was -obliged to do this trimming at least once a year to keep its wires clear.</p> <p>The tree warden of the town of Stoughton is elected. Kennedy, mentioned above, had held the office for about twelve years. From two to five years he had been supervising the trimming work of the Edison Company. While supervising this work Kennedy was an employee of the company and acted as the foreman in charge of the company’s men who were engaged in trimming trees. The Edison Company paid Kennedy $3 a day. The Edison Company did not employ Kennedy as tree warden, but they did employ him because he was tree warden. Kennedy did not hire or discharge the men who worked under him but supervised the work, saw that it was done properly and to his satisfaction, and the Edison Company looked to him to see that the men were kept working. Kennedy reported to one Mattau, the company’s superintendent, any man who was not satisfactory.</p> <p>Howard had worked for Kennedy off and on for three or four years in Kennedy’s official capacity as tree warden. Kennedy introduced Howard to Mattau as a good man who had worked for him several years, off and on. On July 22, Mattau, acting on behalf of the company, engaged Howard to work for the Edison Company. At that time, Mattau told Howard to go with Kennedy and do what Kennedy told him to do.</p> <p>Howard was hired by Mattau, acting for the Edison Company, could have been discharged by him, and received his pay from the company. Neither Kennedy nor Howard was paid or expected to be paid by the town of Stoughton for the work they were doing on the day of the accident.</p> <p>Kennedy’s duty, while engaged in the work of the Edison Company, was to trim trees through which their wires ran. Howard’s duty, while engaged in the work of the Edison Company, was to obey Kennedy’s orders.</p> <p>While Kennedy was engaged in trimming the tree on the lawn of the church where Howard was injured, he was not doing it for the benefit of the Edison Company, but because he thought the dead limbs were dangerous. A day or two before the accident Kennedy had told Mattau, that there were one or two dead limbs on a tree near the church which he would like to have cut off when the men got around there. Mattau said, “Go ahead and do it.” The tree referred to was the tree from which Howard fell, and the limbs were those which he was removing when he fell. Mattau testified that he gave this permission as superintendent with the backing of the company. Kennedy testified that when he ordered the men to go up the tree he gave the order as an employee of the Edison Company. He further testified that he did not think he gave orders to Howard in particular as distinguished from the other men, to go up the tree, but that he did not remember. Howard testified that Kennedy gave the order to trim the tree to the whole gang of tree trimmers and that he believed that he had to obey Kennedy’s orders or “get through.” Howard further testified that Kennedy said to him, “You take one side of the tree, and I’ll take the other.”</p> <p>Howard’s average weekly wages were $12. The Industrial Accident Board found the foregoing facts. They further found that Howard received an injury arising out of and in the course of his employment on August 1, 1912; that at the time of the injury he was an employee of the Edison Electric Illuminating Company, insured by the Massachusetts Employees Insurance Association; and that he, therefore, was entitled to reasonable medical and surgical attendance from August 1, the date of the injury, up to and including August 14, and to compensation from August 15, 1912 to April 2, 1914, that is for eighty-five weeks, at the rate of $6 a week, being half his average weekly wages, amounting to $510, such compensation to be continued during his incapacity for work in accordance with the provisions of the act.</p> <p>The judge made a decree affirming the decision of the Industrial Accident Board; and the insurer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Contract, with two counts, the first for the alleged breach of a contract in writing, which is described in the opinion, and the second on an account annexed. Writ dated January 7, 1905.</p> <p>In the Superior Court the case was tried before Pratt, J. The material evidence is described in the opinion. At the close of the evidence the plaintiff asked the judge to give to the jury the following instructions:</p> <p>“2. That under the contract of March 14, 1904, the plaintiff had the right to perform his part of the contract by installing his machinery, drills, stone crusher and other machinery upon any part of the defendant’s premises described in said contract, that he deemed advisable, and if the authorities of the city of Salem prohibited him from doing the work under the contract at the place so selected by him, and the defendant was unable to procure a license or permit for him to perform his work under the contract, then the defendant is liable to the plaintiff for such damages as he suffered by reason of such interruption or refusal on the part of the authorities to permit him to perform his work under said contract.</p> <p>“3. If in order to perform the contract, it was necessary that a permit or license from the authorities of the city of Salem be issued before the plaintiff could perform said contract, and the defendant failed to obtain such necessary permit or license so that the plaintiff could not perform the work without violating the ordinances of the city of Salem, then such failure of the defendant would constitute a breach of the contract set forth in the first count of the plaintiff’s declaration, and he would be entitled to recover such damages as he suffered by reason of such breach of the contract.</p> <p>“4. The plaintiff was entitled to perform his part of the contract by commencing operations on any part of said premises where in his judgment it was proper to commence, and if a license or permit was necessary from the authorities of the city of Salem, then it was the duty of the defendant to procure said license or permit, and her failure so to do, if it resulted in preventing the plaintiff from continuing his work at such place so selected, would constitute a breach of said contract, and would entitle the plaintiff to damages for such breach.</p> <p>“5. The defendant did not have the right under the contract to require the plaintiff to commence his operations at a place on the premises which was less convenient, less practical and more expensive to the plaintiff to perform his contract, than at some other place on the premises, and her demand on the plaintiff to do so would constitute a breach of her contract, and the plaintiff would be entitled to recover therefor under the first count of his declaration.</p> <p>“6. If the defendant saw the plaintiff after the execution of the contract setting up his plant and made no objections thereto, then she would be estopped from claiming that the plaintiff should set up his plant on the Cliff Street side of the ledge.</p> <p>“7. The act of the defendant on May 12, 1904, in applying for permission to put up for use and maintain a portable steam engine and boiler upon different portions of her land described in the contract, for the purpose of operating a stone crushing plant, was in and of itself some evidence of an admission by the defendant of the right of the plaintiff to maintain his plant on Y Street, or any other part of the plaintiff’s premises.</p> <p>“8. Where a contract is silent or ambiguous with reference to any particular act or thing to be done by the parties thereto the jury have the right to consider, in determining what the contract was, the acts and declarations of the parties themselves, as bearing upon the proper determination of what the contract was between the parties.</p> <p>“9. The notice by the defendant to the plaintiff that her application for a permit or license had been denied, and that he would have to stop working, constituted in law a justification for the plaintiff ceasing said operations, and he was justified after a reasonable time being given to the defendant to obtain said permission, to consider said contract broken by the defendant, and this entitled him to damages under the first count of the declaration.</p> <p>“10. The plaintiff could not be required by the defendant to perform his contract, if such performance would constitute a breach of the law, and the defendant under the contract was bound to secure him the necessary permits in order to perform his contract, and failing so to do, is liable to the plaintiff for damages under the first count of the plaintiff’s declaration.</p> <p>“11. If the plaintiff waited from June until September for the defendant to obtain the necessary permits, and then notified her that he could not keep his plant there any longer, that in law would constitute a reasonable time to obtain the necessary permits, after which the plaintiff could consider the contract broken by the defendant, and he would be entitled to recover damages therefor under the first count of his declaration.</p> <p>“ 12. If the defendant ordered the plaintiff to desist from operating his stone crushing plant on the Y Street side of said premises where it was installed, because the authorities of the city of Salem refused to grant a permit or license for its operation at that point, then that in law would be a breach of the contract by the defendant, and the plaintiff would be entitled to recover damages therefor under the first count of his declaration.</p> <p>“13. If the defendant ordered the plaintiff to stop working the stone crushing plant after receipt of a notice to her from the authorities of the city of Salem refusing her a permit or license to maintain a steam engine and boiler upon different portions of her land for the purpose of operating a stone crushing plant, and the plaintiff thereupon ceased his operations, such notice by the defendant to the plaintiff would be a breach of the contract, and entitle the plaintiff to damages under the first count of his declaration, and the refusal of the authorities of the city of Salem to grant such license or permit would not in law be a justification of the defendant for such a breach.</p> <p>“14. If the defendant failed to provide for the contingency of the authorities of the city of Salem refusing to grant such permits as were necessary in order to enable the plaintiff to proceed lawfully with the performance of his contract, on any part of the defendant’s land described in said contract, then the loss must fall upon her by reason of the happenings of such contingency, that is, her failure to obtain the necessary license or permits.</p> <p>“15. The contract of the defendant was an unconditional promise to pay the contract price therein provided to the plaintiff, and if the plaintiff was prevented, either by the defendant, or by the city authorities from performing his contract, then he is entitled to recover damages for such prevention under the first count of his declaration.</p> <p>“ 16. If the plaintiff was prevented from carrying out his part of the agreement of March 14, 1904, by a refusal of the authorities of the city of Salem to grant a permit or license, which was essential to its being lawfully carried out, the defendant, not having protected herself against such a contingency by some saving clause in her written contract, is not excused from the performance of the agreement, and is liable to the plaintiff in damages in like manner as if she herself had prevented the plaintiff from performing his agreement or had herself refused to perform it.</p> <p>“ 17. If the authorities of the city of Salem refused to grant a permit or license, without which the plaintiff’s stone crusher could not be lawfully operated in the place where he had set it up, that would constitute a breach of the defendant’s contract, and entitle the plaintiff to damages under the first count of his declaration.</p> <p>“ 18. The plaintiff had the right to set up and operate his stone crusher under the terms of the contract at any place on the premises described in the contract as he might choose, and the refusal of the city authorities to permit him to operate at such place would constitute a breach of the defendant’s contract, and entitle the plaintiff to damages under the first count of his declaration.”</p> <p>“20. The contract of March 14, 1904, was a binding contract upon both the plaintiff and defendant, and the defendant was bound under same to make all reasonable efforts to obtain orders for and to sell stone at fair market prices, and if she failed so to do, then the plaintiff would be entitled to damages for such breach.</p> <p>“21. The defendant having bound herself by an absolute agreement for the performance of something not in itself unlawful, is not relieved from her obligation by the mere fact that in consequence of unforeseen circumstances, the performance of her contract has become unexpectedly burdensome, or even impossible, and the plaintiff is entitled to recover for such failure of the defendant to perform her part of the contract.</p> <p>“22. Upon all the evidence, the steam boiler and steam engine set up by the plaintiff on the defendant’s premises under the contract were not stationary, but were portable, and therefore no license was required to authorize the plaintiff to set up and use the same.”</p> <p>The judge refused to give any of these instructions, and gave, among other instructions, the following, which, were requested by the defendant:</p> <p>“ 16. Under the terms of the contract the defendant could require all the cellar stone procured in blasting of the size mentioned in the contract to be preserved and delivered by the plaintiff to whomsoever she might sell the same and could require that cellar stone should be the principal product produced, if in blasting it could be produced.”</p> <p>“25. That under the ordinance of the city of Salem in force in 1904, the plaintiff was required to apply and procure a license to blast.</p> <p>“26. That the existence or non-existence of a license to blast is of no consequence in this case and the rights of the parties are in no way affected thereby.”</p> <p>“32. If the jury should find that the defendant knew that the plaintiff was erecting his plant on the Y Street side of the lot in a place where there was no license so to do and made no objection thereto, and permitted the plaintiff to proceed and thereafter the city of Salem refused a license to operate the steam boiler and engine of the plaintiff at that place, and for that reason the operation at that place on the lot ceased; these facts would not excuse the plaintiff from proceeding on said lot to carry out his contract and if he refused to proceed, on the place on the lot where he lawfully could, that would constitute a breach of the contract on his part and he cannot recover.”</p> <p>The judge refused to make any of these rulings. On the first count of the declaration the jury returned a verdict for the defendant, and on the second count returned a verdict for the plaintiff in the sum of $80.66. The plaintiff alleged exceptions, which after the death of Pratt, J., were allowed by Wait, J.</p> <p>The case was submitted on briefs.</p>

<p>Contract by the trustee in bankruptcy of Jeremiah J. O’Neil to recover from the Home National Bank of Milford the amount of a preference alleged to have been made in violation of the bankruptcy act of 1898, § 60, as amended by U. S. St. 1903, c. 487, § 13. Writ dated January 21, 1910.</p> <p>In the Superior Court the case was tried before Morton, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to make various rulings, of which the first was, that upon all the evidence the plaintiff could not recover and the verdict must be for the defendant. The tenth ruling requested, referred to in the opinion, which the judge refused to make because he had covered it in substance, was as follows: “10. If the bankrupt, at the time he made payment of the notes, intended thereby to create a preference in favor of the indorsers on the notes, and the cashier of the bank to whom the payment was made had no knowledge, actual or constructive, of such intention, then you cannot find for the plaintiff as against this defendant.”</p> <p>The judge refused to order a verdict for the defendant and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,389.66. The defendant alleged" exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Corporation, Dividends. Limitations, Statute of. Trust, What constitutes. Evidence, Presumptions and burden of proof. Practice, Civil, Agreed statement of facts.</p> <p>Whether, as sometimes has been said in other jurisdictions, a stockholder in a corporation cannot maintain an action against the corporation for the amount of a dividend without a previous demand, and therefore the statute of limitations cannot begin to run upon a claim for a dividend until such a demand has been made, here was mentioned as a question which it was not necessary to determine in the present case.</p> <p>Whether a corporation, which in compliance with an order of court has deposited the amount of certain unclaimed dividends in a separate fund apart from its other assets, holds the fund in trust for the payment of such dividends when properly claimed, so that, until the trust is repudiated or the right of a claimant is denied, the statute of limitations does not begin to run against such claimant, here was mentioned as a question which was not passed upon.</p> <p>Under R. L. c. 202, § 10, if a person entitled to bring an action dies within the period fixed by the statute of limitations, the action, if it survives, may be brought by the administrator of his estate within two years after the administrator’s giving bond for the discharge of his trust, although such administrator was not appointed until eighty-four years after the expiration of the original period of limitation.</p> <p>Upon an agreed statement of facts, in which it is stated that a certain person disappeared in 1818 and never was heard of again although diligent inquiries were made, this court under St. 1913, c. 716, § 5, may draw the inference that he was dead in 1825 and consequently had died before February 14, 1831, when the six year period of limitation on his right to sue for a certain dividend expired.</p>

<p>Devise and Legacy. Trust. Executor and Administrator. Words, “Heirs."</p> <p>A testator by his will placed a fund in trust to pay the income to his sister C during her life and at her death to pay the income in equal portions to C’s children during their lives, and, upon the death of any of C’s children leaving issue, to pay to the issue one half of the trust fund; and provided that, in case either of C’s children should die without issue, “the portion of the one so dying shall revert and become part of the residue of” the estate, discharged of the trust. The residue was given “to my brothers and sisters before mentioned [six in number, including C] and their heirs.” All of the six brothers and sisters, after surviving the testator, died, C leaving two daughters, one of whom after-wards died without issue. The estate of the testator was fully administered and there were no known creditors’ claims. On a bill in equity by the trustee for instructions, the estates of the six brothers and sisters being represented by executors or administrators, it was held that the words, “and their heirs,” in the residuary clause were words of limitation intended to show that the gift made was an absolute one to the brothers and sisters named; that the interest there given vested in the brothers and sisters at the death of the testator, and that one half of the trust fund should be divided equally among the estates of the six brothers and sisters. Held, also, that it was not necessary to appoint an administrator de bonis non with the will annexed of the estate of the testator, but that the distribution might be made by the trustee.</p>

<p>Bill in equity, filed in the Superior Court on October 20,1911, and afterwards amended, against Gardiner H. Shaw, his wife, Anna A. Shaw, Mina E. Fritz and the International Trust Company, to reach and apply in satisfaction of a debt owed to the plaintiffs by the defendant Gardiner H. Shaw, certain notes given by the defendant Fritz in the purchase of the Hotel Carlton property in Boston from the defendant Anna A. Shaw, to whom Gardiner H. Shaw was alleged to have conveyed an equity in the real estate with intent to hinder, delay and defraud his creditors, and from a corporation which practically was Gardiner H. Shaw, one of the notes having been placed by Anna A. Shaw in the possession of the International Trust Company.</p> <p>The suit was referred to Arthur P. Hardy, Esquire, as master. The substance of the facts found by him in a first report and a supplemental report is stated in the opinion.</p> <p>Exceptions to the report were overruled by Hardy, J., the report was confirmed, and a decree was entered establishing a debt due from the defendant Gardiner H. Shaw to the plaintiffs and ordering him to pay it, and dismissing the bill with costs as to the other defendants. The plaintiffs appealed.</p>

<p>Contract, Performance and breach, Construction, Por conveyance of land. Practice, Civil, Exceptions.</p> <p>An agreement by an owner of land, to sell and convey it by a warranty deed “ conveying a good and clear title to the same free from all incumbrances,” refers to the actual title and not merely to the record title, and it is performed although the owner tenders a deed conveying a title which according to the record is incumbered by an undischarged mortgage, if the conditions of the mortgage have been fully performed and the debt secured thereby has been discharged.</p> <p>At the trial before a judge without a jury of an action for the recovery of a sum of money deposited by the plaintiff with the defendant in accordance with an agreement whereby the defendant agreed to convey to the plaintiff a certain piece of land by a deed “conveying a good and clear title . . . free from all incumbrances,” it appeared that in 1911 the defendant tendered a deed to the plaintiff but that at that time there was on record in the registry of deeds an undischarged mortgage upon the property, that the mortgage was given and recorded in 1871 by a predecessor in title of the defendant to her father to secure a bond, the condition of which was that the daughter should provide her father with suitable maintenance during his life, that the father lived only ten months after the bond was given, and that no administrator of his estate ever had been appointed. There was ample evidence that the condition of the bond had been performed fully. The plaintiff asked the judge to rule “that the title offered was not good beyond a reasonable doubt because of the undischarged mortgage.” The ruling was refused and the plaintiff excepted. The judge found for the defendant. Held, that the exception must be overruled, because the question raised by the request was one of fact and not of law, and the judge was justified in finding that the title offered was good beyond a reasonable doubt.</p> <p>In the same case, the bill of exceptions stated: “It was admitted that the defendant then [at the time when the parties met for the execution of the conveyance] tendered to the plaintiff a deed . . . which satisfied the requirements of the contract, if the title of the defendant was such as the contract specified. The plaintiff testified that he was ready, willing and able to perform his part of the contract, but he alleged that the defendant’s title was not such as the contract required, and stated to the defendant on said . . . [date] . . . that there was an undischarged mortgage upon said land as hereinafter described. The plaintiff refused to accept the title and demanded repayment of the deposit which the defendant refused. It was agreed at the trial that the only question for the court was whether the title of the defendant hereinafter described was ‘a good and clear title free from all incumbrances.’” Held, that on the record it was not open to the plaintiff to contend that at the time when the deed was tendered to him no evidence was shown that the record title could be remedied so that the ruling of the trial judge “would oblige a vendee either to accept the defective title or to assume the risk of removing the incumbrance, or to forfeit his deposit.”</p>

<p>Will, Disqualification of attesting witness. Witness, To will.</p> <p>Under R. L. c. 135, § 1, which requires that a will should be attested “by three or more competent witnesses,” if an instrument presented for proof as a will contains a bequest of $300 to a church on the condition that it be “applied to the reduction of the present mortgage on the property of said church,” a person who is one of the guarantors of the mortgage note given by the church is not a competent witness to the will, although the amount due on the note is small and is exceeded greatly by the value of the mortgaged property.</p>

<p>Petition, filed in the Land Court on August 11, 1909, for the registration of the title to land on Cambridge Street in Cambridge.</p> <p>The petition was heard in the Land Court by Davis, J., who ordered a decree for the petitioner. Upon an appeal by the respondent under St. 1905, c. 288, the issues stated in the opinion were framed and were tried before Hardy, J. Other proceedings and the evidence at the trial are described fully in the opinion. The findings upon the issues were favorable to the respondent; and the petitioner alleged exceptions.</p>

<p>Tort for personal injuries received by the plaintiff, while a passenger on an elevated street car of the Boston Elevated Railway Company, by reason of a collision on Charles Street in Boston between that car and an automobile truck of the defendants, who were doing business under the name Burkhardt Brewing Company. Writ dated September 16, 1912.</p> <p>The answer of the defendants, as amended, contained, besides a general denial, allegations that the plaintiff “presented to .the Boston Elevated Railway Company a claim for damages for the injuries and damage sustained by him by reason of the accident set out in said declaration, and that thereafter the said Boston Elevated Railway Company paid to the said plaintiff and the said plaintiff accepted the stun of $200 in satisfaction of the damages alleged in the declaration to have been received by the plaintiff, whereby the said plaintiff’s cause of action was wholly settled and discharged.”</p> <p>The case was tried by Lawton, J. On the issue raised by the defense specially alleged in the answer and “for the purpose of showing a claim for damages by the plaintiff against the railway company arising out of the accident alleged in the declaration, and the payment by the railway company and acceptance by the plaintiff of a sum of money in settlement of the claim,” the defendants offered in evidence letters to the Boston Elevated Railway Company from four different attorneys at law, each setting forth a claim for damages for the collision described in the plaintiff’s declaration, a letter from the plaintiff discharging one of the attorneys, further letters from William Burns, Esquire, who remained as counsel, and an instrument, signed under seal by the plaintiff by his mark, which read as follows: “Sept. 16, 1912. This is to certify that William Burns is my attorney; that I have no other attorney; that it is my desire that Wm. Burns settle my case against the Boston Elevated Railway Company for the sum of two hundred dollars; that my rights be reserved against the Burkhardt Brewing Co.” These letters and the instrument were excluded.</p> <p>The defendants also offered in evidence, and the judge admitted, the following instrument signed under seal by the plaintiff by his mark on September 16, 1912, and entitled “Covenant not to Sue.”</p> <p>“I, Caswell Johnson, of Boston, in the County of Suffolk and Commonwealth of Massachusetts, my heirs, executors and administrators, in consideration of Two Hundred Dollars ($200) to me paid by the Boston Elevated Railway Company, a corporation established under the laws of Massachusetts, the receipt of which is hereby acknowledged, do, by this instrument, covenant with the said Boston Elevated Railway Company to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action for damages, costs, loss of services, expenses or compensation for or on account of or in any way growing out of, or hereafter to grow out of, an injury received by me on or about the 9th day of July, 1912, at or near Charles Street near the center gate of the Common wherein I was injured.”</p> <p>The payment of $200 by the street railway company to the plaintiff was admitted.</p> <p>The defendants then offered to show by evidence of conversations between the claim agent of the Boston Elevated Railway Company and the plaintiff’s attorney that there were negotiations between them in reference to the plaintiff’s claim and that the sum of $200 was agreed upon to be paid in settlement of his damages. These conversations were before the execution of the covenant not to sue, and were excluded by the judge.</p> <p>At the close of the evidence the defendants admitted that under the rulings of the judge excluding the evidence offered by him, there was nothing for the jury under their special plea. The case was submitted to the jury upon the other questions involved and a verdict was returned for the plaintiff in the sum of $1,000. The defendants alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort for personal injuries sustained by the plaintiff on November, 14, 1901, while in the employ of the defendants, who sometimes did business under the name of the Pocahontas Coal Company, at the coal run owned and operated by them at 462 Summer Street in Boston. Writ dated September 19, 1902.</p> <p>In the Superior Court the case was tried before Richardson, J. At the close of the evidence, which is described in the opinion, the judge ruled that the action could not be maintained and ordered a verdict for the defendants. He agreed with the counsel to report the case for determination by this court, upon the stipulation of the parties, that, if the ruling and order were correct, judgment should be entered on the verdict for the defendants; otherwise, that judgment should be entered for the plaintiff in the sum of $4,000.</p> <p>After the death of Richardson, J., the case was reported by Crosby, J., under R. L. c. 173, § 108, as amended by St. 1912, c. 317.</p> <p>The case was submitted on briefs.</p>

<p>Insurance, Against liability. Superior Court. Words, “Court of last resort.”</p> <p>Under a provision, contained in a policy of insurance against loss from liability imposed by law upon the insured for damages on account of bodily injuries, that no action shall lie against the insurer for any loss under the policy unless it is paid by the insured in satisfaction of a judgment, “nor unless such action is brought within ninety days after such judgment, by a court of last resort,” the payment of a judgment of the Superior Court, which under R. L. c. 157, § 3, has exclusive original jurisdiction of such an action, satisfies the requirement.</p> <p>Under a provision, contained in a policy against loss from liability imposed by law upon the insured for damages on account of bodily injuries, that such loss shall not be recovered unless paid by the insured in satisfaction of a judgment “after trial of the issue,” it is no defense to an action on the policy that the judgment paid by the plaintiff was obtained by default without a trial, if the plaintiff gave adequate and seasonable notice of the action to the insurer and the insurer appeared and filed an answer and afterwards declined to defend the action; as the insurer cannot be allowed to take advantage of the non-performance of a condition precedent due to its own mistake or misconduct.</p>

<p>Tort for personal injuries against four defendants, who were described in the writ as copartners doing business under the firm name of Winston and Company, the declaration alleging that the plaintiff was employed by the defendants as a day laborer in the digging of a ditch leading from the Farnam Dam, so called, in the town of Lenox, and that he was injured by the falling or caving in of the gravel and stones on one side of the ditch by reason of the alleged negligence of the defendants. Writ dated September 6, 1912.</p> <p>In the Superior Court the case was tried before Hardy, J. The jury returned a verdict for the plaintiff, and the defendants presented for allowance certain exceptions, which were disallowed by the judge. The defendants filed a petition for the allowance of exceptions, which was heard by a commissioner appointed by this court, who made a report.</p> <p>The exceptions, being allowed by this court, raised,' among other questions, the one which is stated and considered in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Will, Attestation. Witness, Attestation of will.</p> <p>Under R. L. c. 135, § 1, a will is not attested lawfully by a subscribing witness, if the person who intended and attempted to execute the instrument as his will concealed his signature from the subscribing witness so that he could not see it or know that it was there.</p>

<p>Bill in equity, filed in the Superior Court on January 17,1913, to enforce specifically the performance of a contract in writing for the sale and conveyance by the defendant to the plaintiff of certain real estate on the north side of High Street in the town of Avon called the Littlefield Farm, the contract being signed “Henry T. Anglin, Agent,” and being alleged to have been made in behalf of the defendant and with his authority.</p> <p>The contract in writing sought to be enforced purported to have been made with Sanford P. Record, who was the plaintiff’s husband. It was as follows:</p> <p>“Brockton, Mass., October 10, 1912.</p> <p>“Received of S. P. Record, two hundred ($200) dollars as deposit on purchase of the L. G. Littlefield Farm on the North side of High Street in Avon, Mass.</p> <p>"Purchase price seven thousand dollars ($7000).</p> <p>"Five hundred ($500) dollars in cash (of which this deposit is a part) on delivery of deed and mortgage back for sixty-five hundred ($6500) dollars to run for two years at 6% per annum, with the privilege of paying the whole or any part (at option of mortgagor) at any previous time.</p> <p>“Property at time of passing title to be free and clear of all encumbrance.</p> <p>“It is hereby agreed that of the three hundred ($300) dollars in cash one hundred and forty ($140) dollars is to go as credit to said Record on a/c of commission and the balance of one hundred and sixty ($160) dollars shall be taken in the form of a three months’ note payable to Henry T. Anglin, with the privilege of making payments of the whole or any part at any time before its due date.</p> <p>"It is also agreed that the said Anglin will not put said note in any Bank for discount.</p> <p>Henry T. Anglin,</p> <p>Agent.”</p> <p>In the Superior Court the case was heard by Lawton, J. The evidence was reported by a commissioner appointed under Equity Rule 35. The material facts shown by the report are stated in the opinion. The judge made the following memorandum: “The contract set out in the second paragraph of the bill was signed not by the defendant but by Henry T. Anglin, Agent, and I am satisfied that the defendant authorized the signing of said contract. The plaintiff has performed her part of the contract and is entitled to a decree in accordance with the second prayer of her bill.” The second prayer in the bill was that the defendant might be ordered to execute and deliver to the plaintiff a deed in proper form of the premises described in the bill.</p> <p>A final decree was entered which ordered a specific performance of the contract; and the defendant appealed.</p>

<p>Ipswich. Proprietors of Jeffries Neck Pasture. Adverse Possession. Estoppel. Words, “Commoners.”</p> <p>In a suit in equity by the town of Ipswich against the Proprietors of Jeffries Neck Pasture, a corporation formally incorporated or reorganized under the statute now R. L. c. 123, and a certain grantee from that corporation, to set aside the deed to the defendant grantee as void under R. L. c. 123, § 14, because not authorized by a vote of two thirds in number of the right owners, a master found that the plaintiff, through a conveyance made to it in 1788 by the Commoners of Ipswich, was the present owner of certain undrawn rights, on which it should have been permitted to vote against the authorization of the deed, and that the defendant corporation had not acquired by ouster or adverse possession any title to such undrawn rights against the plaintiff. It appeared that there was no direct refusal by the defendant corporation to recognize the plaintiff as a right holder until ten years before the filing of the bill. Held, that the relation of the defendant corporation to the owners of the rights, who were the owners in common of the land called the Jeffries Neck Pasture, if not that of a trustee to cesluis que trust, was akin to that relation, so that it would be difficult to infer from equivocal acts of the defendant corporation a purpose to violate the duties arising out of that relationship by disseising or ousting any of the right owners; and on the facts reported the findings of the master were sustained and the deed in question was set aside as not authorized by a vote of two thirds in number of the right owners.</p> <p>In a suit in equity by the town of Ipswich against the Proprietors of Jeffries Neck Pasture and a certain grantee from that corporation, to set aside a deed against the authorization of which the plaintiff had not been permitted to vote as the holder of rights in the defendant corporation, it was found by the master that the plaintiff was the owner of the rights in question through a conveyance made to it in 1788 by the Commoners of Ipswich. It appeared that in 1723 the Commoners of Ipswich pleaded in an action brought by a certain person that they had no right in the common land left undisposed of. The facts reported by the master showed that this plea was not true, the Commoners of Ipswich, besides other grants of rights, having granted two rights to the defendant corporation in 1767 and another right later. Held, that the defendants were not in a position to assert that the plaintiff was estopped by the plea.</p>

<p>Two actions of tort, the first by the administrator of the estate of Frederick A. Kilburn for causing the death of the plaintiff’s intestate on April 8, 1912, on South Street in Holyoke, a public highway between the buildings of the Germania Mills, at the side of which was a branch railroad track operated by the defendant, by reason of the collision of certain cars of the defendant, that were kicked down the track by a switching engine, and a large motor truck driven by the intestate from which he had delivered a package at the main building of the mills; and the second action by the owner of the motor truck for injury to the truck by the same collision. Writs dated July 2, 1912.</p> <p>In the Superior Court the cases were tried together before Aiken, C. J. The facts that could have been found upon the evidence which are necessary to an understanding of the opinion are there stated. Payette, mentioned in the opinion, accompanied Kilburn in the motor truck as a helper. The Chief Justice refused to order a verdict for the defendant or to make certain rulings requested by the defendant, and submitted the cases to the jury. The jury returned a verdict for the plaintiff in the first case in the sum of $5,000 and a verdict for the plaintiff in the second case in the sum of $1,050. The Chief Justice then asked the jury whether they found "that the way across the tracks to the mill door was a way by invitation or a way by license.” The foreman answered, "Invitation,” and the other jurors acquiesced.</p> <p>The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Review. Evidence, Proof of foreign law. Practice, Civil, Review.</p> <p>Upon a petition under R. L. c. 193, § 22, for a writ of review, after final judgment for the defendant in an action at law, to enable the petitioner to show that by the law of another State which governed the rights of the parties the petitioner was entitled to recover, an affidavit of a notary public and counsellor at law, who is not called as a witness, giving his opinion as to the law of such other State, is not admissible in evidence, the respondent having had no opportunity to cross-examine the affiant.</p> <p>A petition under R. L. c. 193, § 22, for a writ of review after final judgment is in effect a motion for a new trial after judgment and is addressed to the discretion of the trial court in which the judgment was rendered.</p> <p>An appeal from an order dismissing a petition for a writ of review under R. L. c. 193, § 22, brings up only matters of law apparent on the record.</p> <p>Where, in an action of contract against an executor, the presiding judge refused to rule, as requested by the defendant, that the plaintiff could not recover because the contract was one to be performed only by the defendant’s testator personally and did not bind the executor, and reported the case for determination by this court, who held that the ruling should have been given and under the terms of the report ordered judgment for the defendant, the defeated plaintiff cannot maintain a petition under R. L. c. 193, § 22, for a writ of review after the judgment in order to permit him to prove at a new trial that the contract was governed by the law of another State under which it was binding on the executor; because the petitioner has had his day in court when he might have offered the evidence in regard to the foreign law but chose not to do so, and his omission to offer the evidence has not been caused by any act of the respondent. In the present case it was said, that, if the evidence of the foreign law which the petitioner wished to present had been brought properly before this court, which it was not, it would not have been essentially at variance with the decision of this court in regard to the effect of the contract.</p>

<p> Hawkers and Pedlers. Constitutional Law. Boston. Police Commissioner of Boston. </p> <p>St. 1907, e. 584, § 9, providing that "the police commissioner of the city of Boston may designate from time to time certain streets, or parts of streets, or sections of the city wherein, and not elsewhere in the city, it shall be lawful on the days and within the hours specified by him, and under such general rules as he shall make, for any hawker or pedler, without the license provided for in this act, to stop or stand for the purpose of selling merchandise,” is constitutional, and a regulation made by such commissioner in pursuance thereof is valid.</p> <p>In deciding that St. 1907, c. 584, § 9, authorizing the police commissioner of the city of Boston to designate "certain streets, or parts of streets, or sections of the city wherein, and not elsewhere in the city, it shall be lawful on the days and within the hours specified by him, and under such general rules as he shall make, for any hawker or pedler, without the license provided for in this act, to stop or stand for the purpose of selling merchandise,” is constitutional, it was said, that the words “and not elsewhere in the city” do not demand an unqualified utter prohibition of the business of hawking and peddling in some sections, but that the statute merely provides for prohibition in the streets and sections designated during defined hours on certain days and for regulation in all other parts of the city.</p>

<p>Forgery. Forging Public Record. Evidence, Of official records, Opinion: experts, Of intent, Of motive, Of handwriting. Practice, Criminal, Exceptions. Words, “Public records.”</p> <p>The valuation lists of the assessors of a town are “public records” within the meaning of R. L. c. 209, § 1, which makes it a crime to forge a public record with intent to injure or defraud.</p> <p>In order to constitute the crime of forging a public record with intent to injure or defraud, it is not necessary that the whole instrument should be fictitious. The forgery may consist in the material alteration of a part of a valid document, as in the present case it consisted in changes in the valuation lists of the assessors of a town.</p> <p>The fraudulent alteration of the valuation lists of the assessors of a town is none the less the forging of a public record with intent to defraud under R. L. c. 209, § 1, if at the time of such alteration the fists, although they had been delivered to the collector of taxes, were not accompanied by a warrant for the collection of the taxes therein assessed.</p> <p>Upon an indictment under R. L. c. 209, § 1, for forging a public record “with intent to injure or defraud” by making alterations in the valuation lists of the assessors of a town, it is not nécessary, in order to convict the defendant, to show an intent to defraud a particular person. It is sufficient to prove a general intent to defraud some one.</p> <p>The provision of R. L. c. 175, § 74, that copies of official records of departments of the Commonwealth or of any city or town authenticated by the attestation of the officer who has charge of them “ shall be competent evidence in all cases equally with the originals thereof,” does not render the originals themselves incompetent as evidence.</p> <p>At the trial of an indictment under R. L. c. 209, § 1, for forging alterations in a public record with intent to injure or defraud, the presiding judge excluded evidence offered by the defendant consisting of excerpts from a book entitled “Forgeries and False Entries” written by one who had testified for the Commonwealth as an expert in handwriting. It did not appear for what purpose the evidence was offered and there was nothing to show that the excerpts had any tendency to contradict or control the testimony of the government witness. Held, that the exclusion was right, the opinions expressed in the book being on the same footing as opinions expressed in medical books.</p> <p>At the trial of an indictment under R. L. c. 209, § 1, for forging a public record with intent to injure or defraud by making alterations in the valuation lists of the assessors of a town, where it appears that the defendant was a member and .the chairman of the board of assessors, evidence is competent and material which shows that the defendant made the alterations with an intent to cheat and defraud and not for the purpose of correcting errors, and evidence also is competent, as tending to show a motive to commit the crime, that intimate relations of friendship existed between the defendant and certain persons whose property had been assessed and that the alterations had been made to enable those persons to escape the payment of taxes that had been assessed to them lawfully.</p> <p>At the trial of an indictment under R. L. c. 209, § 1, for forging a public record, where it is material to show that alterations made in the valuation lists of the assessors of a town were in the handwriting of the defendant, it is proper for the presiding judge to admit in evidence as a standard of comparison a deed, to which the defendant was not a party, which is shown to have been written by him.</p> <p>An exception in a criminal case to a refusal of the presiding judge to instruct the jury that “ upon all the evidence in the case the verdict must be not guilty” cannot be sustained if all the evidence is not reported or described and the bill of exceptions shows no error of law.</p> <p>In a criminal case, as in a civil one, exceptions to the admission or exclusion of evidence cannot be sustained, where all the evidence material to the exceptions is not reported or described and it does not appear how the evidence in question applied to the case as it stood when such evidence was presented.</p>

<p>Constitutional Law, Right to clear statement of charge in indictment, Right not to testify. Larceny. Pleading, Criminal, Indictment. Evidence, Of intent, Presumptions and burden of proof, Circumstantial. Practice, Criminal, Conduct of trial. Words, “Steal.”</p> <p>The word “steal” as used in an indictment for larceny under the short form set forth in R. L. c. 218, has become a term of art and includes the criminal taking of personal property either by larceny, embezzlement or false pretenses.</p> <p>Article 12 of the Declaration of Rights requires in an indictment for larceny only , such particularity of allegation as may be of service to the defendant in enabling him to understand the charge and prepare for his defense, and, where the statutory form of indictment is used, this right is sufficiently protected by R. L. c. 218, § 39, providing for a bill of particulars in case the defendant desires more specific information as to the crime which he is alleged to have committed.</p> <p>There is nothing in the provisions of R. L. c. 218 in regard to the form of an indictment for larceny by false pretenses that violates any right secured by the Fourteenth Amendment or any other provision of the Constitution of the United States.</p> <p>On an indictment for larceny from a certain woman, it appeared that the defendant induced the woman to give him large sums of money amounting to more than $80,000 for certain sets of books, of which the total value was less than $5,000, by means of representations, including a statement that he could sell one of the sets of books for $75,000, and a later statement that he had sold the set of books for that amount to a Chicago man whose name he said he could not disclose. It further appeared that the defendant and his associate gave false names and addresses, so that no trace might be found of them, and that the defendant made a statement to an officer of a bank on whom the woman gave him a check or draft as to the proposed application of the money which was wholly inconsistent with his representations to the woman herself. It appeared that the woman was utterly ignorant of the subject matter and acted without the slightest advice from any one except the defendant and his associate. The presiding judge ruled that representations of the defendant as to the future and those as to the value of the sets of books did not constitute false pretenses, but left the case to the jury, instructing them in substance that the defendant might be found guilty of making fraudulent representations as to existing facts. After a verdict of guilty, the defendant, upon the argument of his exceptions, contended that there was no evidence that the representations as to a purchaser and his agreement to buy the set of books were false to the knowledge of the defendant or that they were made with intent to defraud. Held, that upon the circumstances shown, including those stated above, the jury were warranted in finding that there was no such customer and no such agreement and that the representations of the defendant were fraudulently false.</p> <p>At the trial of an indictment for larceny by false pretenses whereby a certain woman was induced to pay large sums of money for sets of books of little value by representations of the defendant that he could sell one of the sets for a large sum of money named and that a certain man had agreed to pay that sum, it is proper to admit evidence tending to show that, about two years before the beginning of the defendant’s transactions with the woman alleged to have been defrauded, he had made to two other persons false representations of a kindred nature in regard to the sale of extremely valuable publications to persons of great wealth, the testimony being limited strictly by proper instructions of the presiding judge to the issue of the defendant’s intent in his representations made to the woman alleged to have been defrauded.</p> <p>On an indictment for larceny by obtaining money from a certain person by false and fraudulent representations, it is not necessary to show, in order to convict the defendant, that the fraudulent representations made by him were the only influence operating upon the mind of the person in question to induce him to give up the money. It is enough to show that the fraudulent representations made by the defendant were a decisive influence to that end.</p> <p>At the trial of an indictment for larceny by false pretenses, the district attorney during his closing argument said, “Now, because the defendants do not take the stand no presumption, the law says, is to be taken against them. ... I will say again, the law places a cloak over these defendants and does not oblige them to take the stand.” The presiding judge instructed the jury accurately and fully as to the right of the defendants not to testify and told them that no adverse inferences could be drawn from the defendants’ failure to become witnesses, and also instructed them correctly as to the proper scope of the arguments of counsel and the significance to be attached to such arguments. Held, that, although the argument of the district attorney seemed to have gone rather far, it was within the discretionary power of the judge in the conduct of the trial not to interrupt the argument, and that the rights of the defendants were protected fully by the instructions of the judge.</p> <p>At the trial of an indictment for larceny by false pretenses, the presiding judge instructed the jury, that, in deciding whether or not they were satisfied beyond a reasonable doubt that the pretenses were false, they might draw, without direct evidence to that effect, such inferences as they thought ought to be drawn and as they were “satisfied beyond a reasonable doubt should be drawn,” and further instructed them that they might draw such inferences as they felt “compelled to draw as reasonable men.” Held, that these instructions, when taken in connection with the charge as a whole, were not too broad and were accurate as applied to the evidence and the issues.</p>

<p>Two actions of tort, the first by a married woman for personal injuries sustained on February 23, 1909, in the manner described in the opinion, and the second by her husband for consequential damages. Writs dated April 15, 1909.</p> <p>In the Superior Court the cases were tried together before Dana, J., who at the close of the plaintiffs' evidence, which is described in the opinion, ruled that the plaintiffs were not entitled to recover and ordered verdicts for the defendant. The plaintiffs alleged exceptions.</p>

<p> Warehouse Receipts Act. Warehouseman. Conversion. </p> <p>The provision of the warehouse receipts act, St. 1907, c. 582, § 21, that “ a warehouseman shall be liable to the holder of a receipt for damages caused by the non-existence of the goods,” does not undertake to define the holder of a receipt, and does not change the rule established in this Commonwealth by Sears v. Wingate, 3 Allen, 103, that a principal, whose agent has authority to issue receipts on the delivery of goods to the principal, is not bound by a receipt issued by such agent for goods which have not been delivered to the principal.</p> <p>Whether a warehouseman, whose agent has authority to issue receipts on the delivery of goods to the warehouseman and who issues a receipt for goods which the warehouseman never received, may be made liable upon such instrument if the warehouseman was negligent in the way in which he allowed such agent to conduct his business in regard to the issuing of receipts, here was mentioned as a question not passed upon in this case, where it was found by the trial judge on evidence not reported that there was no negligence on the part of the warehouseman and where upon the facts stated in the report of the judge his finding was not wrong as matter of law.</p> <p>In an action for the conversion of fifty bales of rags, it appeared that the manager of a warehouse corporation undertook to sell personally fifty bales of rags to the defendant and gave him what purported to be a receipt of the warehouse corporation for the rags, which was void against that corporation because it represented no rags delivered to the corporation, that the manager then changed the marks on fifty bales of rags in the warehouse belonging to the plaintiff and delivered those bales to the defendant in exchange for the supposed warehouse receipt, that afterwards the warehouse corporation lent to the plaintiff without interest an amount of money equal to the value of the rags with an agreement that, if the plaintiff should recover damages from the defendant, the loan should be repaid at the time and in the proportion that such recovery should be had, and1 that at the same time the plaintiff undertook to assign all his claims against the defendant to the warehouse corporation and appointed that corporation his attorney to sue the defendant in the plaintiff’s name or otherwise for the conversion of the fifty bales of rags. The defendant contended that the money paid to the plaintiff by the warehouse corporation, which purported to be a loan, was paid by the corporation in satisfaction of the plaintiff’s claim against the corporation for the conversion of the rags, that thereby the title to the rags was vested in the warehouse corporation, and that therefore the plaintiff had no title at the date of the writ to maintain an action for the conversion. ■ Held, that the arrangement between the warehouse corporation and the plaintiff was as matter of law a loan, as it purported to be, and afforded no defense to the plaintiff’s action against the defendant for the conversion of the rags.</p>

<p>Will, Execution. Supreme Judicial Court. Practice, Civil, Amendment, Right to prove admitted fact. Evidence, Of intent. Witness, Corroboration.</p> <p>If a person, who intends to execute an instrument as his will, after placing his signature for the purpose of identification on the margin of each of the first four pages of the instrument, proceeds in the presence of three witnesses to sign his name on the margin of the fifth page, intending it as the signature of his will, and thereupon the three witnesses sign the attesting clause prepared for them, this is a valid execution and attestation of the will, the effect of which is not impaired by the testator afterwards recalling the witnesses and in their presence signing his name at the end of the in testimonium clause without any further signing by the witnesses, such later signature of the testator being no part of his will.</p> <p>Where an appeal from a decree of the Probate Court admitting a will to probate was tried before a single justice of this court prior to the passage of St. 1913, c. 716, so that under the provision of § 6 of that statute an amendment to the petition for the proof of the will, for the purpose of correcting the record in a technical matter, could not be allowed by the full court, an order, which overruled exceptions to the rulings of the single justice, was made conditional upon the final allowance of the suggested amendment.</p> <p>At the trial, upon an appeal fro a decree of the Probate Court allowing a will, of the issue, “Was the alleged will now offered for probate executed according to law? ” where the executor has introduced evidence that the alleged testator signed his name on the margin of the fifth page of the instrument, intending it as the signature of his will, he may introduce further evidence, for the purpose of showing that the alleged testator signed the instrument anima testandi, to the effect that immediately after the signing of the instrument on the margin of the fifth page an indorsement was made on a former will stating that it was cancelled.</p> <p>Upon the trial of an issue of fact, an admission by one of the parties of a certain material fact does not deprive the other party of his right to prove that fact by affirmative evidence.</p> <p>Where, at the trial of an appeal from a decree of the Probate Court allowing a will, the contestants have made an attempt to show that the testimony of a certain witness for the executor differed from that which he had given in the Probate Court, the executor may be allowed to introduce evidence of the testimony given by the witness in the Probate Court for the purpose of showing that it was to the same effect as that given by him at the trial of the appeal.</p>

<p>Land Court, Appeal.</p> <p>Under R. L. c. 128, § 13, as amended by St. 1910, c. 560, § 1, a legatee of money under the will of a testator, whose estate is alleged to be involved in proceedings in the Land Court for a registration of the title to a parcel of land, has no interest in the land which can make him a party aggrieved by a decree of the Land Court concerning it and give him a right to claim an appeal.</p>

<p>Equity Jurisdiction, To compel payment of claim of materialman out of fund retained under St. 1909, c. 514, § 23. Bond. Equity Pleading and Practice, Parties.</p> <p>A contract with a city for the construction of a bath house provided that from monthly payments to the contractor sufficient sums should be deducted and retained by the city “to settle claims for materials or labor furnished for carrying on the contract, notice of which claims, signed and sworn to by the claimants severally, shall have been filed” in the office of the city or with officers as specified in the contract. A surety company gave to the city a bond with a condition to the effect that the contractor should “faithfully furnish the material and do the work required of him by the contract.” Held, that the provision of St. 1909, c. 514, § 23, that sufficient security for those furnishing material or performing labor for the construction of a public building for a city shall be obtained “by bond or otherwise,” was complied with by the provision of the contract above described, and that, provision having been made “otherwise,” the bond of the surety company was not required by nor given under the statute; and consequently that, when the contractor had become a bankrupt, a materialman to whom the contractor owed an unpaid balance had no remedy on the bond or against the surety company.</p> <p>A contract with a city for the construction of a bath house provided for monthly payments to the contractor on account, subject to revision on the final settlement between the parties to the contract, and in compliance with the requirement of St. 1909, c, 514, § 23, provided that from the amount due the contractor sufficient sums should be deducted and retained by the city from the monthly payments to settle the duly filed claims for materials and labor furnished for carrying on the contract. The contractor became a bankrupt. In a suit in equity by a materialman against the city to obtain about $560 due to him from the contractor from a fund of about $13,350 that had been retained by the city out of its monthly payments, the city in its answer claimed damages in recoupment by reason of the contractor’s failure to construct the building in accordance with the specifications of the contract. It appeared that by the contractor’s failure to comply with the terms of the contract the city had suffered a loss of $4,750. Held, that of the amount of $13,350 retained by the city the sum of $4,750 never became due to the contractor, and therefore the sum of money in the hands of the city, of which the plaintiff was entitled to have a proportionate share applied to the payment of his claim, was only the difference between those amounts, that is, about $8,600.</p> <p>Where a surety company has given to a city a bond with the condition that a certain contractor who has agreed with the city to construct a building for a certain price will faithfully do the work required of him by his contract, and the contractor by his failure to comply with the terms of the contract causes the amount which would have been due to him upon his full performance of the contract to be diminished by a certain sum of money, which is more than covered by an amount of money that under the terms of the contract has been withheld by the city from the contractor by deducting it from the amount that would have been due to him upon the full performance of his work, the surety company owes nothing to the city upon its bond, because the contractor has performed in substance the condition of the bond by making good to the city his deficiency in the performance of the contract and the city has lost nothing.</p> <p>In a bill in equity by a materialman against a city to compel the payment of a debt due to him from a bankrupt contractor by enforcing his right to share in a fund withheld from the contractor by the city in compliance with St. 1909, c. 514, § 23, the proper procedure is for the plaintiff to bring a suit in equity in behalf of himself and all other persons having similar claims, instead of making the other claimants defendants, as the plaintiff did in the present case.</p>

<p>Contract, What constitutes. Broker, Commission. Frauds, Statute of. Equity Pleading and Practice, Amendment, Decree. Rules of Court.</p> <p>If one real estate broker tells another real estate broker that he has valuable information which will enable the second broker to earn a commission and that he will impart it to him if the second broker will go ahead and do the work and will give him one half of the commission, whereupon the second broker agrees to these terms and thereafter by means of the information negotiates an important lease on which he is paid a commission, the contract to pay the first broker one half of the commission is not bad for indefiniteness' and can be enforced.</p> <p>If a real estate broker, in consideration of certain information imparted to him by another real estate broker, agrees that if he earns a commission by reason of the Information he will give the informing broker one half of it, this is a contract that can be performed within a year and is not within the statute of frauds R. L. c. 74, § 1, cl. 5; and, if the contract with the customer under which the commission is earned provides for the payment of the commission in instalments to be paid in successive years, this does not change the character of the original contract between the two brokers.</p> <p>Although in an action at law no recovery can be had on facts that happened after the date of the writ, in equity this is otherwise and rights accruing to the plaintiff after the filing of the bill which grew out of the matter on which the bill was founded may be made the subject of a supplemental bill, and accordingly under Equity Rule 25 they may be pleaded by way of amendment to the original bill.</p> <p>In a suit in equity, where the plaintiff had established his right to receive one half of a commission, which was payable to the defendant in instalments, and some of the instalments were not payable when the bill was filed but became payable and were paid to the defendant while the case was pending, but the plaintiff had failed to amend his bill under Equity Rule 25 by adding allegations that the subsequent instalments of the commission had been paid, it was ordered that, if within a time named the bill should be amended by adding such allegations, the decree should require the payment to the plaintiff of one half of the entire commission, and that otherwise the recovery should be limited to one half of so much of the commission as had been paid to the defendant when the bill was filed.</p>

<p>Contract, Construction. Corporation, Rights of shareholders under consolidation agreement. Damages, In equity.</p> <p>Under a consolidation plan issued by a committee to the shareholders of three corporations, which were to be consolidated into a new corporation, all of the shares of the consolidating companies being deposited for exchange, it was provided, in regard to the shareholders of one of the consolidating companies, ¡that a holder of preferred shares should receive an equal number of shares of the second preferred stock of the new company and that a holder of common shares was entitled to subscribe for an equal number of common shares in the new company at $15 a share. The consolidation plan contained the provision, “Any depositor failing to pay any instalment of such subscription, as and when the same shall become due and payable, shall, in the absolute discretion of the committee, its successors or assigns, forfeit all right and interest under this plan and agreement and any instalment or instalments theretofore paid.” It was provided in the plan that the depositors of the old shares should have certificates of deposit issued to them and it was contemplated that such certificates should be assignable. A holder of both preferred and common shares in the consolidating company above referred to deposited all bis shares of both kinds under the plan and subscribed for a number of the new shares of common stock at $15 a share equal to the number of his old shares of common stock. Afterwards he was notified to make payment upon his subscription and failed to pay any part of it. He transferred the certificate for his preferred shares without consideration to an assignee who presented it to the depositary and demanded a transfer of the certificate of deposit so that it should stand in his own name. The committee, acting in good faith under the advice of counsel, directed the depositary to refuse to transfer the certificate on the ground that the depositor of preferred shares who had assigned the certificate was in default upon his subscription for the common shares and to notify such depositor and his assignee that the committee in its absolute discretion might forfeit all of such depositor’s rights under the plan unless he paid his subscription without further delay. Upon the refusal of the depositary to transfer the certificate, the assignee brought a suit in equity against the members of the committee and the depositary to compel such transfer, and for damages. Held, that the provision of the consolidation plan quoted above for a forfeiture of “all right and interest under this plan and agreement” in case of a failure to pay a subscription for common shares referred only to all the right and interest of the defaulting shareholder in respect to his common shares; therefore, that the plaintiff was entitled to a decree for the transfer to him of a certificate of deposit representing his assignor’s preferred shares; but that he was not entitled to damages.</p>

<p>Practice, Civil, New trial.</p> <p>If a motion for a new trial, which is asked for on the grounds of alleged prejudicial conversations in the presence of the jury and of alleged improper conduct of the deputy sheriffs in charge of the jury and is supported by the affidavits of persons who have appeared as witnesses at the trial, is denied by the trial judge for the reason, stated by him, that he is not satisfied of the truth of the allegations contained in the motion, his decision will not be disturbed.</p>

<p>Tax, Excise on foreign corporations. Constitutional Law, Interstate commerce, Equal protection of laws. Corporation, Foreign. Words, “Permanent property.”</p> <p>The constitutionality of the excise imposed by St. 1909, c. 490, Part III, § 56, on certain foreign business corporations having usual places of business in this Commonwealth, which is in effect the requirement of a license fee for the privilege of doing a local business in this Commonwealth, here was referred to as already established and was reaffirmed.</p> <p>Under St. 1909, c. 490, Part III, § 70, providing that a foreign business corporation aggrieved by the exaction of an excise may, within six months after the payment of such excise, maintain a petition for the purpose of showing that such excise should not have been exacted, which shall be its exclusive remedy, such a foreign corporation is not deprived of this remedy by reason of its compliance with the requirements imposed by the statutes of this Commonwealth on foreign corporations doing business here.</p> <p>The provision of St. 1909, c. 490, Part III, § 56, imposing an excise on certain foreign business corporations having usual places of business in this Commonwealth, does not apply to a foreign corporation having its place of business here only for use in interstate commerce, and there is no distinction in this regard between a corporation doing a commercial or trading business and one engaged in the business of transportation.</p> <p>In determining whether a commercial or trading business is interstate, it is not of decisive consequence where the contracts are made or where the title passes.</p> <p>A foreign corporation is subject to the excise imposed by St. 1909, c. 490, Part III, § 56, when it transacts in this Commonwealth domestic business substantial in its essence and reasonably susceptible of separation from the corporation’s interstate commerce.</p> <p>The mere fact that a foreign corporation may not be able to make profits enough on its domestic business transacted in this Commonwealth to meet the excise imposed by St. 1909, c. 490, Part III, § 56, does not make the law unconstitutional as to that corporation nor exempt the corporation from the excise.</p> <p>A corporation, organized under the laws of another State, which maintains in this Commonwealth stations for the purpose of transmitting and receiving for hire wireless electric messages to and from ships on the high seas and foreign countries, and which neither transmits nor receives any messages overland or in or through this Commonwealth, is engaged exclusively in foreign commerce and accordingly is not subject to the excise imposed on certain foreign corporations by St. 1909, c. 490, Part III, § 56.</p> <p>A corporation, organized under the laws of another State, whose business, so far as this Commonwealth is concerned, consists of selling by contracts made in New York coal bought in other States to customers in the New England States and arranging for its transportation to them over the high seas or by rail from the State of Virginia, such sales being arranged solely through the medium of a manager and a salesman who travel to see prospective purchasers or communicate with them by telephone or letter from an office maintained in Boston, where a stenographer is employed, is engaged exclusively in carrying on commerce “among the several States” and accordingly is not subject to the excise imposed on certain foreign corporations by St. 1909, c. 490, Part III, § 56.</p> <p>A corporation, organized under the laws of the State of Connecticut for the manufacture of silk and other fabrics and for the purpose of trade, which maintains ftn office in Boston, with one permanent office salesman and four travelling salesmen who travel throughout New England, where a stock of samples is kept and where sales are made by sample to customers who resort there in considerable numbers, the sales being subject to approval at the home office in Connecticut, from whence the goods are shipped directly to the customers, maintains a place of business in this Commonwealth not used exclusively for interstate commerce and accordingly is subject to the excise imposed by St. 1909, c. 490, Part III, § 56.</p> <p>A corporation, which is organized under the laws of Virginia, manufactures machinery at its factory in Pennsylvania and maintains an office in Boston, where there are a manager, an office manager and four inspectors, all of whom act as salesmen and sell machines on orders which become operative on acceptance at the office in Pennsylvania, and where also a stock to replace and repair broken parts of machines is kept constantly on hand, from which parts are supplied by direct sale for about half the repairs made on the company’s machines in New England, the keeping and sale of this stock in Boston being an inducement to the trade to buy these machines, conducts a local business which is wholly distinct from its interstate business although it affects the profits of that business, and accordingly the corporation is subject to the excise imposed by St. 1909, c. 490, Part III, § 56.</p> <p>A corporation, organized in West Virginia, having a factory in Connecticut where it manufactures and sells automobiles and occupying in Boston a large building as an office, salesroom and repair shop, where ten persons are employed in its sales and office department and twenty in its repair department and where it keeps a stock of repair parts and repairs cars of its own make and secondhand cars that it takes in exchange for cars of its own make, maintaining there also a used-car department, where it sells cars of its own and other makes that have been taken as a part of the consideration in the sale of new cars and constantly keeps a stock of such used cars for sale, conducts a local and domestic business that is separate and distinct from its interstate business, and accordingly is subject to the excise imposed by St. 1909, c. 490, Part III, § 56.</p> <p>A corporation, organized in another State and engaged in the manufacture of flour in that State, which maintains a Boston office that has charge of the business of the corporation in New England and a part of New York, where sixteen travelling salesmen are employed, seven of whom are devoted to the Massachusetts trade and all of whom, although paid by the corporation, act as agents for the domestic wholesalers in soliciting orders from domestic retailers, the corporation also keeping on hand in Boston a small stock from which it makes sales for delivery in Massachusetts, is subject to the excise imposed by St. 1909, c. 490, Part III, § 56; and the motive which influences the corporation in undertaking the business of providing agents for the wholesalers and the fact that a natural result of this business may be to increase the corporation’s sales to the wholesalers are immaterial circumstances.</p> <p>A corporation, organized under the laws of Michigan as a holding company, its articles of incorporation stating that its business office outside the State of Michigan is at Boston, whose property consists of the shares of a foreign copper mining corporation, the shares of a foreign railroad corporation and certain mineral lands, and whose business consists in receiving monthly dividends from its shares of stock in the foreign corporations and depositing them in Boston banks, the distribution of these receipts, after payment of officers' salaries and expenses, to its stockholders by way of dividends, and the holding of its directors’ and stockholders’ meetings, all of which things are done at its Boston office, is a foreign business corporation having a usual place of business in this Commonwealth and is subject to the excise imposed by St. 1909, c. 490, PartHI, §56.</p> <p>A corporation, organized under the laws of Michigan to mine, smelt and refine copper and other minerals and sell them, its articles of incorporation stating that its business office outside the State of Michigan is at Boston, whose product is sold exclusively through a selling agent in New York, but whose president and treasurer have their offices in Boston, where five of its seven directors reside and where the directors’ meetings are held, the general management and control of all its business and property being vested in its directors, although they by vote entrust the exclusive management of the company’s mine in Michigan to a general manager there, transacts business in this Commonwealth which is not interstate commerce and accordingly is subject to the excise imposed by St. 1909, c. 490, Part III, § 56.</p> <p>A corporation, organized in another State to manufacture and sell automobiles and there maintaining its factory, which has a local and domestic business in this Commonwealth, is none the less subject to the excise imposed by St. 1909, c. 490, Part III, § 56, because after 1903 (when St. 1903, c. 437, § 75, was in force) and before the passage of the statute of 1909, which made the excise more onerous, it bought land in Boston and built on it a large building of steel, brick and concrete especially adapted for use as a garage, this not being an acquisition of permanent property which would make the imposition of the additional excise unconstitutional as a denial of equal protection of the laws within the principle of Southern Railway v. Greene, 216 U. S. 400.</p>

<p>Negligence, Employer’s liability, Causing death. Joint Tortfeasors.</p> <p>The damages recoverable from an employer under the provisions of the employers’ liability act contained in St. 1909, c. 514, §§ 128-131, for causing the death of an employee are punitive and not compensatory in character, being required to "be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable,” and consequently an employer, who has incurred the punishment of paying the amount of a judgment against him for causing the death of an employee, cannot recover the whole or any part of the damages thus paid by him from another person who contributed to the wrongful conduct on which the judgment was founded; because the amount which the employer paid was the proportion assessable to his own wrong and nothing more.</p> <p>In the present case the principle stated above was applied to an action by a mill corporation against a railroad corporation to recover the amount of a judgment paid by the plaintiff for causing the death of an employee by reason of a defect in a coal car that had been delivered to the plaintiff by the defendant in a defective condition.</p> <p>The exception, to the rule that there can be no contribution between joint tortfeasors, which permits a recovery where the plaintiff acted in good faith and did not participate in the defendant’s wrongful conduct, does not apply to an action by a mill corporation against a railroad corporation to recover the amount awarded for conscious suffering in a judgment paid by the plaintiff in an action against him under St. 1909, c. 514, § 128, for alleged negligence that caused conscious suffering of an employee preceding his death, in which damages were awarded for the death as well as for the conscious suffering; because under the statute there could have been no recovery against the plaintiff of substantial damages for the death unless there had been some degree of direct culpability on his part.</p>

<p>Negligence, In dragging heavy stone.</p> <p>A contractor’s foreman, who orders a teamster of twenty-five years’ experience, whom he has hired with his team from a master teamster, to unhitch from the wagon the pair of horses he has brought with him and hitch them to a lead bar for the purpose of dragging a flagstone six feet long by three feet wide to a place about forty feet distant, owes no duty to the teamster to tell him that, if he has only ordinary reins, he should walk alongside the horses in a place of safety instead of walking between the horses and" the stone where he may be hit by the stone as it is being jolted over rough ground.</p>

<p>Negligence, Employer’s liability. Workmen’s Compensation Act.</p> <p>In an action at common law by a workman against his employer for personal injuries, alleged to have been caused by the failure of the defendant to give the plaintiff notice of the dangers incident to his employment, which happened after St. 1911, c. 751, Part I, § 1, took effect, so that neither contributory negligence of the plaintiff, the negligence of a fellow employee nor the plaintiff’s assumption of the risk of injury is open as a defense, the only question to be tried is whether the defendant was negligent in failing to warn the plaintiff.</p> <p>In an action at common law by a workman against his employer for personal injuries sustained, while engaged in assisting in the work of tearing down the walls of a brick building that had been destroyed partially by fire, by reason of the alleged negligence of the defendant in failing to warn the plaintiff of the danger to which he was exposed, there was evidence that the plaintiff had had considerable experience in working in the removal and demolition of buildings, that a wall of the building had had a hole knocked in it across which a plank was placed with a chain attached to it by ropes and pulleys, connected with a capstan turned by a horse, for the purpose of producing such a strain on the wall as to cause it to fall into the cellar, that the plank used for this purpose had broken, that a foreman, who could be found to have been directing the work by authority of the defendant, ordered the plaintiff “to change the hitch” on the rope that was attached to the chain that went around the plank, that the plaintiff, in obeying this order, was obliged to walk over a surface strewn with bricks, pipes, timbers, electric wires and other rubbish, that he walked in the direction of the wall, keeping seven or eight feet away from it, and then, turning his back to the wall, proceeded to carry out the order by pulling on the block that was fastened to the chain, when the wall suddenly fell upon him without warning. There also was evidence that the defendant’s foreman was standing about twenty feet away from and in sight of the wall when it fell upon the plaintiff, that after the plank had broken the wall had swayed and' mortar had fallen from it, and that on other occasions, previous to the accident, the foreman had warned the plaintiff and the other workmen of the dangers that arose during the progress of the work. - Held, that it could be found by the jury that the defendant’s foreman had better means than the plaintiff of observation and of seasonably appreciating the danger and that he should have warned the plaintiff before it was too late.</p>

<p>Intoxicating Liquors. Forfeiture, Of intoxicating liquors. Judgment. Practice, Criminal, Discontinuance. Evidence, Presumptions and burden of proof.</p> <p>A criminal proceeding in rem under R. L. c. 100, § 48, for the forfeiture of certain intoxicating liquors alleged to have been brought into a town in which licenses of the first five classes were not granted and to have been intended for sale in violation of law, is not barred by the previous conviction under St. 1906, c. 421, as amended by St. 1910, c. 497, § 2, of the person who transported the liquors for transporting them in the town without having been granted a permit so to do. A criminal proceeding in rem under R. L. c. 100, § 48, for the forfeiture of certain intoxicating liquors, is not barred by a previous proceeding under the same statute, in which the prosecuting officer terminated the case by a discontinuance and an order was made for the return of the liquors followed by their delivery to the claimant.</p> <p>A criminal proceeding in rem is not affected by a previous complaint under the same statute relating to the same matter which was dismissed by a district court for want of jurisdiction.</p> <p>In a proceeding in rem under R. L. c. 100, § 48, for the forfeiture of certain intoxicating liquors, the allegations of the complaint must be proved as in other criminal cases beyond a reasonable doubt.</p>