Volume 225 — Massachusetts Reports

<p>Workmen’s Compensation Act. Insurance, Agent. Automobile.</p> <p>If a life insurance agent accepts an invitation to go to another city in the automobile of a person whom he is trying to persuade to take out a policy and who wishes to discuss further the matter of the proposed insurance and as a result of their conversation on the trip the owner of the automobile decides to take out a policy, and if on their way back the automobile “turns turtle” and the insurance agent is injured, in a claim made by him under the workmen’s compensation act it cannot be found that the injury was one “arising out of” his employment.</p> <p>In the case above stated, the question, whether a life insurance agent is an employee within the meaning of the workmen’s compensation act, was mentioned as one which it was not necessary to decide in the present case.</p> <p>It seems that an injury from a peril incident to the voluntary use by an employee of an automobile as a vehicle of travel does not arise out of the employment of the traveller, although he may have been travelling in the course of his employment.</p>

<p>Pleading, Civil, Declaration, Common count. Damages, Measure of, Capability of ascertainment. Reference and Referee. Contract, Validity, Implied in law.</p> <p>Although allegations in a declaration which are inserted purely by way of reply to an anticipated defence are not ground for a demurrer, their insertion is not to be commended.</p> <p>In an action of contract and tort by a subcontractor against a general contractor who had had a contract for the construction of a portion of the line of a railroad which was terminated by the railroad corporation, where it was admitted by demurrer that the plaintiff had released the defendant from all liability on account of work done by the plaintiff on the railroad, in return for which the defendant had'agreed to collect from the railroad corporation all claims for damages to the plaintiff and to himself and to pay to the plaintiff his “pro rata share of the amount recovered, talcing into consideration in said pro rata distribution all things relating to the work performed, including plant, general outfit, etc.,” that the defendant had settled all claims with the railroad corporation and fraudulently had represented to the plaintiff that the net amount received by him was less than it was in fact and that his expenses incurred in connection with the settlement were greater than they were in fact, whereby the plaintiff was induced to receive in payment a sum much less than his pro rata share, it was held, that the amount of money which it was stipulated should be paid to the plaintiff by the defendant was as easy of ascertainment by the usual methods of court trial as are the damages in many cases successfully disposed of by courts and juries.</p> <p>In the case above described, it also was admitted by demurrer that it further had been stipulated between the parties that, in case the plaintiff and the defendant were “unable to agree upon said pro rata distribution, then, and in that event, the distribution shall be made by three arbitrators whose decision, it is hereby agreed, shall be final. Said board of arbitration shall be composed of said [defendant] and two disinterested members who have a practical knowledge of such work as has been performed; said arbitrators to be appointed, one by a committee of two representing all the subcontractors on said construction work, and the third to be appointed by said [defendant] and the arbitrator appointed by the parties interested.” Held, that the stipulation as to arbitration was not made a condition precedent to a right to recover upon the contract and was distinct and severable from the agreement to pay a pro rata share of the amount received by the defendant.</p> <p>In the same case it was intimated, that the arbitration clause above described was invalid on the ground that it is contrary to natural right and fundamental principles of the common law for one to judge his own cause; but this point was not decided, because it was enough to say that it could not be presumed that the parties intended to make such an arbitration a condition precedent to a right of action without using words far more explicit than were to be found in the agreement in the present case.</p> <p>In the same ease it was held that the allegations admitted by demurrer in regard to the fraud and deceit practiced upon the plaintiff by the defendant in regard to the amounts received by him from the railroad corporation and the purposes for which they were received, and in regard to the expenses and disbursements made by the defendant, made it plain that the defendant had incapacitated himself from acting as an arbitrator by his fraudulent conduct in regard to the matter in controversy; that therefore it was impossible that there should be such an arbitration as was contemplated by the contract; and that the defendant, by his culpable acts having rendered a resort to arbitration impossible, could not be heard to contest his liability by reason of the failure of the arbitration.</p> <p>It also was held that the arbitration clause in the present case fell within the general rule well settled in this Commonwealth that an agreement to refer to arbitration, when not made a condition precedent of the right to sue, will not be sustained as a bar to an action at law or a suit in equity.</p> <p>In the same case it was said that it was not necessary to determine whether the arbitration clause in question was invalid as an agreement to oust the courts of their jurisdiction.</p> <p>In the same case it was held that, whether the plaintiff should recover in contract or in tort, the measure of the damages to which he was entitled was the difference between the amount actually received by him from the defendant and the amount to which he was entitled upon a true accounting in accordance with the contract between the parties.</p> <p>In the same case it was held that, in any event, the plaintiff was entitled to retain the amount of money paid to him by the defendant, which the defendant had admitted to be due.</p> <p>By R. L. c. 173, § 12, a plaintiff declaring on a common count must “file a bill of particulars with his writ when it is entered” and a failure to do so is ground for demurrer; but, in such a case, the defect being a purely formal one, leave to amend by filing a bill of particulars ordinarily will be granted.</p>

<p>Compromise Agreement, Under R.L.c. 148, § 15. Guardian, Ad litem. Judgment. Limitations, Statute of.</p> <p>A compromise agreement under R. L. c. 148, §§ 15, 16, adjusting a controversy between the persons who claim as devisees or legatees under a will and the persons entitled to the estate of the deceased under the statutes regulating the descent and distribution of intestate estates, need not be signed by a guardian ad litem appointed to represent future contingent interests.</p> <p>A decree of the Probate Court confirming under R. L. c. 148, §§ 15, 16, a com-' promise agreement adjusting a controversy concerning the allowance of a will, if it affected future contingent interests which would arise under the will if admitted to probate and those interests were not represented in the proceedings by a guardian ad litem appointed under § 16 to represent them, was made without jurisdiction as affecting such interests and cannot operate to deprive the persons who become entitled to such interests of their rights.</p> <p>Upon a petition to vacate a decree of the Probate Court confirming under R. L. c. 148, §§ 15, 16, a compromise agreement adjusting a controversy concerning the allowance of a will, where, the petitioner alleges and contends that in the proceedings relating to the confirmation of the compromise agreement his future contingent interests were not represented by a guardian ad litem, and where the decree sought to be vacated contains the recital, “It appearing that all persons interested who are of full age and legal capacity and the guardian appointed by this court for all minors interested and to represent any future contingent interests which would arise under said will if admitted to probate, have consented to said compromise agreement,” this recital is not conclusive against the petitioner and he has a right to prove that it is not true and that in fact his interests were not represented.</p> <p>R. L. c. 136, § 3, providing that a decree allowing a will shall after two years be final and conclusive in favor of purchasers for value in good faith without notice, of any adverse claim, does not apply to a decree confirming a compromise agreement under R. L. c. 148, § 15, under which the rights of the parties are contractual and not testamentary.</p> <p>Whether the authority given by R. L. c. 148, § 15, to confirm a compromise agreement adjusting a controversy concerning the allowance of a will, authorizes the confirmation of an agreement which has the effect of extinguishing a devise over after a life estate, here was mentioned as a question on which no opinion was expressed.</p>

<p>Supreme Judicial Court, Reservation for full court. Salem Rebuilding Commission. Mandamus.</p> <p>A petition for a writ of mandamus reported under R. L. c. 173, § 105, by a single justice for determination by the full court “on the pleadings and agreed facts” is before this court only for the decision of the questions of law disclosed by the record and not for the decision of questions of discretion.</p> <p>It seems that a failure of the Salem rebuilding commission, appointed under St. 1914, c. 777, to grant within nine days an application for a permit to build a stable in a part of the city in which buildings were destroyed by the fire of June 25, 26, 1914, is not a denial of the application nor an unreasonable delay in considering it, and properly cannot be made the foundation of a petition for a writ of mandamus addressed to the members of the commission.</p> <p>The Salem rebuilding commission appointed under St. 1914, c. 777, are given by § 3 of that statute the following authority: “In those parts of the city in which buildings were destroyed by the said fire, said commission and its agents shall have sole authority to grant permits for the erection of buildings, and may make regulations as to the location and size of such buildings and the materials of which they shall be constructed, and as to what proportion of the lots of land upon which they stand shall be covered thereby.” The regulations made by the commission included the following provision: “The commission reserves the right to prescribe additional requirements for any buildings to be erected within the burnt district where the safety of life or property is involved, or the public health.” Held, that the commission had the power and right to refuse to grant a permit to build a stable in the burnt district solely on the ground that the proposed building did not comply with a reasonable regulation made by the commission after the filing of the application for the permit, although the proposed building would have complied with all the regulations of the commission that were in force when the application was filed.</p> <p>On a petition for a writ of mandamus addressed to the members of the Salem rebuilding commission commanding them to grant a permit to build a stable in the burnt district under the circumstances stated above, it appeared that at the time of the filing of the petition for the writ of mandamus the respondents had not made the new regulation under which they proposed to refuse the building permit applied for by the petitioner, but there was nothing to indicate a capricious or unreasonable refusal to grant the permit, and the petition for the writ was dismissed.</p>

<p>Contract, Implied. Evidence, Materiality, Of intent, Opinion. Conservator. Practice, Civil, Conduct of trial, Exceptions.</p> <p>A married son lived in the same tenement with his father, who had suffered a paralytic shock and whose property was in the charge of a conservator appointed by the Probate Court in 1904 under R. L. c. 145, §§ 40, 41. The son daily and nightly rendered necessary services for his father and incurred expenses for his benefit, including payment for the services of a housekeeper and a nurse for six months before his father’s death. He never spoke to his father nor to any other person about expecting pay for what he was doing for his father until after his father’s death and he never kept any book account or memorandum of the payments and services. Upon the father’s death the son was appointed one of the administrators of his estate and filed in the Probate Court a petition asking to be allowed individually payment for his services and expenses. The father’s only property during the period in question was the building in which his tenement was and the land on which it stood. The income from the land and building, which were subject to a mortgage, was not sufficient to pay the interest on the mortgage and for water rates, taxes, repairs and insurance, but the equity of the property during all the time was worth at least S3,000. The petitioner testified that he did not render the services as a gratuity to his father. There was evidence of facts and circumstances warranting a finding that the father in his unspoken acceptance of the benefits conferred on him understood that his son expected to be paid for his services and disbursements and that the father received them with that understanding and with an intent that there should be pecuniary recompense. Subject to an exception by the respondent, the petitioner was asked, "At the last part of your father’s sickness, did your mother get sick also? ” and answered in the affirmative. Held, that the question and answer were admissible to show the circumstances under which the services were rendered and the necessity for them.</p> <p>In the same case the petitioner, after having testified without objection that he did not render the services as a gratuity to his father, was asked, subject to the respondent’s exception, “Explain what your intention was in furnishing those?” and answered, “Of course I realized there was estate there.” Held, that the question and answer were admissible, the purpose and intent of the petitioner at the time the services were rendered and the expenses were incurred being material.</p> <p>In the same case it was held that the petitioner rightly was allowed to give his opinion as to the value of the support furnished and of the services rendered. Moreover the respondent admitted that the amount claimed by the petitioner was reasonable, so that, had this testimony been admitted erroneously, the respondent would not have been harmed by it.</p> <p>In the same case, the presiding judge, subject to the respondent’s exception, instructed the jury “that the petitioner could not recover under the circumstances disclosed by the evidence unless he showed that at the time he rendered the services and incurred the expenses for which he sought to recover in this proceeding, he expected to be paid, and rendered them on the credit of his father, but that it was not necessary that this understanding should be communicated to the father.” Held, that this instruction was correct, the reference to the father meaning that the agreement need not have been an express one but might be implied in fact from the circumstances, and that, if the respondent thought that the instruction as given did not bring out as clearly as the respondent desired the necessity of establishing the understanding of the father as well as that of the petitioner, he should have called the attention of the judge specifically to this omission or want of emphasis.</p> <p>In the same case it was held that the'petitioner in order to recover was not required to prove that the conservator refused to support the intestate properly and to devote the proceeds of his property to his support or to prove that after such refusal the petitioner rendered the services and demanded payment from the conservator and that such payment was refused.</p> <p>In the same case it was held that the fact that the intestate was under a conservator-ship during all the time involved in the controversy did not raise a conclusive presumption that he was incapable of making a contract.</p> <p>The appointment of a conservator in 1904 under R. L. c. 145, §§ 40, 41, and his continuance in charge of the property of an aged person until the death of such aged person in 1914 do not create a necessary implication that the person under such conservatorship was incapable during that time of making a valid contract.</p>

<p>Workmen’s Compensation Act. Supreme Judicial Court. Equity Jurisdiction, To suspend decree of Superior Court made under workmen’s compensation act.</p> <p>A decree made by a single justice of the Supreme Judicial Court in a suit in equity brought under St. 1915, c. 132, ordering that a decree of the Superior Court awarding compensation to the dependent widow of an employee upon a claim under the workmen’s compensation act be suspended during the pendency of an appeal by the insurer, is founded on matters that rest in the discretion of the single justice and is not subject to review by this court on appeal except in instances where an error has been committed so gross as to amount to an abuse and to be an arbitrary exercise of power.</p> <p>The fact that in the opinion of the single justice the insurer has a substantial defence to the claim which it intends to bring before the full court is a sufficient cause for exercising the power of suspension.</p>

<p>Practice, Civil, New trial.</p> <p>There is no objection in law to the granting of a rehearing of a motion for a new trial after it has been denied, if the case has not gone to judgment.</p> <p>A trial judge in the exercise of his discretion may grant a rehearing of a motion for a new trial after he has denied the motion, even although there was no mistake in the first hearing and the judge merely has reached a different conclusion on more mature reflection. He has the power to reconsider his decision on the same facts.</p> <p>Where at the trial of an action of contract there was no dispute in regard to the amount of damages and the counsel on both sides in their arguments and the judge in his charge in effect told the jury that, if a verdict should be returned for the plaintiff, it should be in the sum of $1,200, and thereupon the jury returned a verdict for the plaintiff in the sum of $204.37, the presiding judge granted a motion for a new trial on the ground that the damages awarded in the verdict were inadequate and stated in his memorandum of decision, “No other ground was discussed or considered,- and it appears to the court that the verdict was clearly a compromise verdict, and the whole case should be retried.” Held, that the setting aside of the verdict as a whole and ordering a new trial of all issues was warranted, and that the case was not one where under St. 1911, c. 501, "the new trial shall be limited to the question of the amount of damages.”</p>

<p>Landlord and Tenant, Covenant to pay taxes. Tax, United States income tax. United States Income Tax.</p> <p>A covenant in a lease, by which the lessee agrees to pay “all taxes and assessments whatsoever, except betterment taxes, which may be levied for or in respect of the said leased premises, or any part thereof, or upon or in respect of the rent payable hereunder by the lessee, howsoever and to whomsoever assessed," obliges the lessee to pay a United States income tax imposed upon the rent as income of the lessor.</p> <p>Accordingly under such a lease a lessee, who in obedience to the law of the United States has "deducted and withheld” from the rent such sum as would be “sufficient to pay the normal tax imposed thereon” by the income tax law and has paid such sum “to the officer of the United States Government authorized to receive the same,” has no right to deduct the amount of such payment from the amount of the rent which he pays to his lessor.</p>

<p>Practice, Civil, Amendment, Conduct of trial. Pleading, Civil, Declaration. Judgment. Deceit. Damages, In tort.</p> <p>At the trial of an action at law it is within the discretionary power of a presiding judge, who previously has allowed the plaintiff to amend a certain count of his declaration, to permit him further to amend the count by striking out all that he has been allowed to add to it.</p> <p>It also is within the discretionary power of such presiding judge, after having allowed the amendment above described, to permit the defendant to demur to the declaration, which contains counts both in contract and tort, on the ground of misjoinder of counts in that the count amended as above described, which is in tort for deceit, sets forth a different cause of action from other counts of the declaration which allege a breach of contract.</p> <p>In the case above referred to the counts in contract alleged the employment of the plaintiff by the defendant as the manager of a sugar plantation at the salary of $12,000 a year and his wrongful discharge by the defendant, and the count in tort for deceit alleged false and fraudulent representations of the defendant which induced the plaintiff to resign as the manager of the plantation in question. The presiding judge sustained the demurrer. Held, that the counts were misjoined in law and that the demurrer was sustained rightly.</p> <p>In the same case it was held, that the plaintiff, after the order sustaining the demurrer, properly was allowed five days within which to elect whether to proceed on his counts in contract or on the count in tort.</p> <p>In the same case it appeared that the count in tort originally had been added to the declaration by a previous amendment which had been allowed by another judge, and it was argued for the plaintiff that the order allowing this amendment was an adjudication that the count in tort was for the same cause of action as the counts in contract. Held, that the order allowing the amendment was only a decision under R. L. c. 173, § 121, that the count in tort was for the cause of action for which the action was intended to be brought, and that the question whether the. declaration as amended was demurrable for misjoinder of counts was a different one and was left open.</p> <p>In an action of tort for false and fraudulent representations made to the plaintiff that he had been discharged as the manager of a corporation operating a certain sugar plantation and that his successor had been appointed, whereby he was induced to resign as such manager, it appeared that the salary, which by the defendant’s agreement the plaintiff had received as manager, was $12,000 a year and that he continued to receive payment at the same rate for three months and a half after his resignation, that before the expiration of this time he was employed as the manager of another sugar plantation under a contract for ten years at a salary of $15,000 a year with a further interest in profits and a privilege of buying stock, that at the time he was employed as manager by the defendant he was given the right of purchasing five thousand shares of the corporation for which he was engaged as manager, and that he exercised this right, pledging these shares with shares of another stock as security for a loan of $150,000, which was payable two years and ten months after his resignation, that in the month following that in which he resigned the plaintiff sold the five thousand shares of the corporation at the market price, receiving for the shares $150,773 which he applied in payment of his note for $150,000, that at the time the deception was practiced upon the plaintiff he had outside property from which he received an annual income of about $13,000, that he resigned in January and obtained his new position with the increased salary in the following May, that in the following September the market price of the stock of the corporation of which the plaintiff had been manager was considerably lower than it was when he sold his five thousand shares in the preceding February, and that the market price of the stock was not materially higher until more than two years after the deceit complained of. The plaintiff claimed no damages for loss of salary but claimed damages for his loss sustained in being compelled by reason of his resignation to part with his five thousand shares in the corporation. Held, that, even assuming that the plaintiff had been compelled to part with his shares, which did not seem to be proved, he might, when he soon became bétter off, have bought them back again at the same price or cheaper, and that his failure to make a profit by selling the shares at a high price more than two years after the deception was due to his own action or want of action and not to the tort of the defendant, so that the plaintiff was entitled to recover only nominal damages.</p> <p>In the same case the plaintiff contended that he was entitled to damages for the loss of gains and profits which he would have made, if he had remained the manager of the corporation, by building up the sugar plantation from a small to a large production and thus making more valuable the five thousand shares of stock that he then held and the stipulated privileges given him by his contract as manager. It appeared that the tenure by the plaintiff of his position as manager was uncertain and that his employment could have been terminated at any time at the pleasure of the directors of the corporation. In view of this fact among others, it was held, that such damages were speculative and hypothetical and could not be recovered.</p>

<p>Constitutional Law, Apportionment of representation. House of Representatives. Suffolk County Apportionment Commissioners,. Mandamus.</p> <p>An attempted apportionment of representation in the legislative districts of Suffolk County by commissioners elected under St. 1913, c. 835, § 390, which allots three representatives to 7,946 voters and only two representatives to 8,613 voters and allots two representatives to 4,854 voters and only one representative to 5,596, is void, because it does not apportion the representatives assigned to Suffolk County “ equally, as nearly as may be, according to the relative number of legal voters,” as required by art. 21 of the Amendments to the Constitution.</p> <p>A petition for a writ of mandamus addressed to the Suffolk County apportionment commissioners declaring void an attempted apportionment of representation in the legislative districts of that county and ordering the commissioner’s to perform their duty in conformity to art. 21 of the Amendments to the Constitution may be maintained by a voter in a district against which discrimination was made in the attempted apportionment.</p> <p>Upon the question of granting such a petition evidence as to the reasons that influenced the commissioners in making the apportionment sought to be set aside is immaterial, and the report of the commissioners must be judged by what appears on its face in the light of the facts judicially known to the court.</p>

<p>Constitutional Law, Apportionment of representation. House of Representatives. Essex County Commissioners. Mandamus.</p> <p>A report of the Essex County commissioners, made under art. 21 of the Amendments to the Constitution, of the division of that county into representative districts and the apportionment among those districts of the representatives allotted to them by St. 1916, c. 270, § 24, can be called in question in the courts only by the Attorney General representing the public or by one who shows that his constitutional rights have been impaired.</p> <p>Accordingly a voter in a legislative district of that county against which no unjust discrimination has been made cannot maintain a petition for a writ of mandamus to set aside such a report of the county commissioners on account of alleged discriminations against other districts.</p> <p>Upon a petition by a voter of legislative district No. 14 of Essex County against the county commissioners of that county for a writ of mandamus to set aside their report apportioning the legislative representation in that county, it appeared that district No. 14 as defined by the commissioners comprised wards 3 and 4 of Lynn and the town of Nahant and that three representatives were apportioned to the district, giving one representative for each 3,414 voters, which was only 174 voters more than the unit of representation for the whole county, and that the county contained twenty-seven towns, which could not be divided, and seven cities composed of forty-six wards, which could not be divided, and it was held, that the petition must be dismissed; because the excess of 174 voters above the representative unit did not show that the petitioner’s constitutional rights had been violated.</p>

<p>Negligence, Causing death, Contributory.</p> <p>In an action by an administrator against a street railway corporation under St. 1907, c. 392, for causing the death of the plaintiff’s intestate before the passage of St. 1914, c. 553, by running into him with a car operated by the defendant when he was between three and four years of age, where it appears that the intestate was in charge of a brother twelve years old, who without looking went with the smaller boy upon the track in front of the approaching car which was in plain sight a short distance away, the plaintiff cannot recover, because, his intestate having been too young to take care of himself, it is necessary to show the exercise of due care on the part of the custodian, of which there is no evidence.</p>

<p>Workmen’s Compensation Act, Dependency, Form of decree. Adoption. Words, “Family,” “Next of kin.”</p> <p>By the definition of dependents who are entitled to compensation under the workmen’s compensation act contained in St. 1911, c. 751, Part V, § 2, such dependents must be either members of the employee’s family or his next of kin.</p> <p>Where a deceased employee maintained no household and was a boarder in the family of another where for about three months before his death he paid for the board of a natural half sister who was his sister by adoption, it cannot be found that such sister was a member of his family within the definition of dependents contained in the workmen’s compensation act.</p> <p>The words “next of kin” as used in the definition of dependents under the workmen’s compensation act contained in St. 1911, c. 751, Part V, § 2, mean the kin who are nearest in degree.</p> <p>A natural half sister who also was the sister by adoption of a deceased employee cannot be the next of kin of such deceased employee within the definition of dependents contained in the workmen’s compensation act, if the adopting father of the employee was living at the time of his death, because under R. L. c. 154, § 7; c. 133, § 1, the adopting father was his next of kin.</p> <p>A decree of the Superior Court, affirming a decision of the Industrial Accident Board dismissing a claim under the workmen’s compensation act, included matter in the nature of an opinion, and this court, in affirming the order made by the decree of the Superior Court, ordered that such decree be modified by striking out all the words thereof and substituting therefor the following: “This case came on to be heard at this sitting and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the claimant was not a dependent upon the employee at the time of his injury, and that the case is dismissed.”</p>

<p>Will, Validity. Undue Influence. Evidence, Competency. Practice, Civil, Rulings and instructions, Conduct of trial.</p> <p>At the trial in the Superior Court of the issues, whether an alleged testator at the time of the execution of the instrument offered for probate as his will was of sound and disposing mind and memory and whether the alleged will was “procured to be executed by the fraud or undue influence ” of a certain person, who was the principal beneficiary, where throughout the trial it was undisputed that the testator intended that this person should be the principal devisee and legatee under his will, and where the jury with the will before them must have understood this plainly from the language used in the will and from the instructions of the presiding judge, the judge properly may refuse to construe a certain clause in the will in connection with certain other clauses by declaring what the legal rights of the legatees, devisees and trustees named would be if the will were admitted to probate, the respective rights of the different persons claiming under the will not being in issue.</p> <p>At the trial of the issues named above the presiding judge gave the following instructions: “To have a sound mind in the matter of making a will, it is not necessary that a person have sufficient capacity for the transaction of ordinary business, or be accustomed to attend to ordinary business. It is, rather, a testamentary capacity that is required, namely, his mind must be sound with respect to whatever is involved in the making of his will; that is to say, he must have been able to understand and carry in mind, in a general way, the nature and situation of his property, his relations to persons who are about him and to those who would naturally have some claim on his remembrance, and to those in whom and those things in which he has been mostly interested. . . . the important question ... is, Did the testator have the mental capacity to understand the nature and importance of the transaction in which he was engaged when he made this will?” Held, that these instructions were correct.</p> <p>Where a testator has executed a will which was prepared by counsel acting under full instructions from him and was read to him before he signed it, it is to be assumed, unless the contrary is shown, that the testator understood the effect of the mil as a whole, and it is not necessary to the validity of the will that the testator should have understood the technical effect of legal terms or should have anticipated the construction that would be adopted if the will should come before the courts on a bill for instructions or in a suit by a legatee against the executor.</p> <p>At the trial of the issue, whether an alleged testator was of sound and disposing mind and memory, it is right for the presiding judge to refuse to instruct the jury that, if the alleged testator was a believer in spiritualism, his belief was an insane delusion or an erroneous opinion amounting to an insane delusion or constituted insanity or unsoundness of mind upon a single subject sufficient to invalidate the will.</p> <p>At the trial of an issue as to the soundness of mind of an alleged testator, it is proper for the presiding judge to instruct the jury, that, if they find that the alleged testator “was a believer in spiritualism and that this belief influenced his life,” causing him to separate from his wife and daughter and “ prevented his daughter from seeing him, those are circumstances which you may consider on the question of the unsoundness of mind” of the alleged testator. ’</p> <p>Where at the trial of an issue, whether the execution of an alleged will was procured by the fraud or undue influence of a certain woman who was the principal beneficiary" under the alleged will, there is evidence that for many years until the death of the alleged testator the woman, who was a spiritualistic medium, had been in charge of his household, consisting at first of himself and the sons of a brother and afterwards of the medium and himself, the question, whether through their common belief in spiritualism or by reason of the conditions attaching to their personal relations the woman so influenced and controlled the alleged testator that he lived apart from Ms wife and daughter and made the alleged will giving to the woman a large part of Ms property, is for the jury under smtable instructions.</p> <p>At the trial of the issue, whether the execution of an alleged will was procured by the fraud or undue influence of a certain woman, if the contestant of the will wishes to have the jury determine whether a part of the will “was procured to be executed” through such fraud or undue influence, he should move to have the issue so recast and enlarged as to include that inquiry, and, in the absence of such a motion and such a reframing of the issue, it is right for the presiding judge to refuse to instruct the jury that, “if from all the evidence you find that [the woman in question] by fraud or undue influence procured, or partly procured, the execution of this will, it cannot be sustained.”</p> <p>At a trial of issues of fact a presiding judge should refuse to make a ruling or give an instruction which assumes the truth of facts in dispute.</p> <p>At the trial of the issues above described the judge appeared not to have limited the period of time to which the evidence should be confined, and the parties introduced evidence of the acts of the alleged testator and of his relations to his wife and daughter and to the person charged with the exercise of undue influence during a period of approximately thirty-four years. A copy of a letter written by him to his daughter with his comments thereon in writing and a typewritten copy of another letter to his daughter, of which the original was not produced upon notice, were held to have been admissible, not only on the issue of the mental capacity of the alleged testator, but also on the issue of undue influence as showing the alleged testator’s state of mind or feeling toward his daughter, besides being admissible as tending to contradict the witnesses for the contestant. In the same case it was held, that the admission by the judge of certain evidence, which apparently was so immaterial and colorless as to have been harmless, was within the judge’s discretionary power, which was not shown to have been exercised arbitrarily or prejudicially.</p>

<p>Res Judicata. Mortgage, Of real estate. Damages, In equity.</p> <p>Where, after a mortgage debt had been paid and, upon the wrongful refusal of the mortgagee to discharge the mortgage, the mortgagor brought a suit in equity against him and obtained a decree ordering him to discharge the mortgage without awarding costs, and thereupon the mortgagee complied with the decree, the mortgagor cannot maintain an action against the mortgagee under R. L. c. 127, § 35, to recover the amount of his counsel fees and of the entry fee in the suit in equity as damages caused by the defendant’s refusal to discharge the mortgage, the decree in the suit in equity, which granted relief without awarding costs, being a conclusive adjudication that the plaintiff suffered no damages.</p>

<p> Ice. Hawkers and Peddlers. </p> <p>In R. L. c. 57, § 44, which provides that "Whoever, being engaged in the business of selling ice at retail, refuses to sell, from any place or vehicle engaged in the regular distribution of ice at retail, a piece of ice at the fair value thereof to any person, other than an ice dealer, shall... be punished by a fine of not more than one hundred dollars,” the words “any .'. . vehicle engaged in the regular distribution of ice at retail” describe a cart from which ice is peddled, and the statute does not apply to a wagon sent out by an ice dealer to deliver ice in performance of contracts previously made.</p>

<p>Indictment found and returned in the county of Worcester in October, 1915, charging that Fred B. Perkins and Edward L. Scully of Webster on or about March 2,1915, “well knowing that complaints for the illegal sale or illegal keeping of intoxicating liquors were pending in the First District Court of Southern Worcester against William Winter, of Dudley, in said county, and against divers other residents of said Webster and said Dudley, and knowing that the said Perkins was a material witness therefor in behalf of said Commonwealth to testify concerning the allegations in said complaint, did conspire together to obtain money from said William Winter and others, in return for an agreement on the part of said Perkins to absent himself from said court and not to appear before the same to give evidence of what he knew concerning said complaints, and did contrive, intend and conspire to impede and obstruct the due course of justice therein and did then and there propose to said Winter that said Perkins should not appear before said court and should absent himself therefrom and should not prosecute said complaints against said Winter and said others for the sum of five hundred dollars to be paid to them, the said Perkins and the said Scully, and did then and there agree with said Winter and others, that said Perkins should absent himself from said court and not appear before the same to give evidence of what he knew concerning said complaints against said Winter and said others.”</p> <p>The defendants were tried before Callahan, J. Before the jury were impanelled the defendants moved to quash the indictment. This motion was denied by the judge, and the defendants excepted and appealed.</p> <p>The case was tried upon an agreed statement of facts which it was admitted that the Commonwealth could prove. The defendants asked the judge to order verdicts for the defendants and also asked him “to rule that upon the agreed facts the defendants cannot be convicted upon this indictment.” The judge refused to order the verdicts or to make the ruling requested, and the jury returned a verdict of guilty against both defendants. The defendants alleged exceptions, and the judge granted a stay of sentence under R. L. c. 220, § 3.</p> <p>The case was submitted on briefs.</p>

<p>Marriage and Divorce. Domicil. Husband and Wife. Judgment, Of other State.</p> <p>A wife, who when living with her husband in this Commonwealth as their matrimonial domicil is deserted without justifiable cause by her husband who estabfishes Ms domicil in another State, if she contmues to five in tMs Commonwealth retains her domicil here, in spite of the legal fiction by wMch the domicil of the wife commonly follows that of her husband.</p> <p>In such a case tMs Commonwealth has jurisdiction over the matrimomal status and the parties.</p> <p>Where a husband and wife have their matrimonial domicil in tMs Commonwealth and the husband without justifiable cause deserts Ms wife and establishes a domicil in another State and Ms wife remains in tMs Commonwealth gmltless of any marital wrong and ignorant of Ms place of abode until Ms return to tMs Commonwealth after the expiration of three years, and where such deserting husband dining Ms absence has obtained from a court of the State of Ms new domicil a divorce in accordance with the laws of that State for a cause wMch would authorize a divorce by the laws of tMs Commonwealth, Ms wife having had no actual notice and no knowledge of the proceedings, so that the court had no jurisdiction of both parties, the decree of divorce thus granted in the other State will not be enforced nor recogmzed in tMs Commonwealth and is no bar to a libel by the wife for divorce on the ground of desertion.</p> <p>What would be the effect of such a foreign divorce if the wife had actual notice of the proceedings when it was obtained, was spoken of as a point that was not before the court for decision.</p>

<p>Equity Jurisdiction, Judgment creditor’s bill, To set aside conveyance fraudulent against creditors. Fraud, As against creditors. Judgment. Equity Pleading and Practice, Master’s report, Master’s essential error as to admission of evidence, Decree, Amendment. Evidence, Competency.</p> <p>In a suit in equity by a judgment creditor to set aside a conveyance made by the judgment debtor to his wife as fraudulent against creditors, it was held that the record of the judgment against the defendant debtor properly was admitted in evidence, and that, whether the judgment was conclusive as to the defendant wife of the debtor, who was not a party to the action in which it was obtained, did not matter, because she introduced no evidence to impeach or contradict it.</p> <p>In the case above described it was found by a master that the defendant wife received large sums of money from her husband with knowledge of his fraudulent purpose to cheat his creditors and knowing that he gave her the money to prevent his creditors, whom he had wronged, from obtaining rightful possession of it, and that the money so received by her was commingled with her own, and it was held, that a ruling, made by the master at the request of the plaintiff, that the burden was on the defendant wife to prove what- part of such mingled property lawfully was hers although she had no actual or constructive knowledge of such fraud, was immaterial and that it did not matter whether this ruling was correct or not.</p> <p>In the same case it was held that the evidence reported warranted findings of the master, that the real estate and some of the personal property mentioned in the plaintiff’s bill were held by the defendant wife in fraud of her husband’s creditors, that they were purchased with funds given her by her husband to secure them from his creditors, and that, knowing his purpose, she purchased with this money and some of her own, which could not be identified, the designated real estate and personal securities.</p> <p>In the same case the plaintiff introduced in evidence before the master the testimony of the defendant debtor given in a criminal trial, in which he was convicted of obtaining money by the fraudulent buying and selling of grocery stores, and the defendant wife objected and excepted to the master’s making use of this testimony to her prejudice for the purpose of showing the receipt of money from her husband. The master’s report showed that this testimony was used by the master as the basis of findings made by him against the defendant wife. Held, that, although exceptions to the rulings of a master as to the admission of evidence will not be sustained unless a material error detrimental to the excepting party is shown, yet in the present case the testimony of the defendant debtor at the criminal trial was used wrongly against the defendant wife to establish the essential facts that she received money from her husband which belonged to his creditors and that she accepted it with full knowledge of her husband’s fraudulent purpose, and that this was so highly prejudicial to the defendant wife that the" exception must be sustained and there must be a new trial.</p> <p>A decree in a suit in equity must be limited to such matters proved or admitted at the trial as are alleged in the bill.</p> <p>In a suit in equity by a judgment creditor to set aside certain conveyances of real estate and certain transfers of personal property purchased by the wife of the judgment debtor with money of his creditors from whom he wrongfully had obtained it, if a decree for the plaintiff goes beyond the allegations of the bill as well as beyond the evidence and, in addition to ordering a sale of the property mentioned in the bill, orders also the sale and application of other property not mentioned in the bill, and further orders a personal judgment against the defendant wife of the debtor for any balance found to be due to the plaintiff after the application of the proceeds from the sales ordered, no such relief being prayed for in the bill, the decree is bad.</p> <p>Where a decree in a suit in equity is bad in purporting to grant relief not prayed for by the bill, the question whether the plaintiff should be permitted to amend his bill is for the trial court upon a rehearing of the case.</p> <p>In ordering a new trial in the creditor’s suit above described, it was said, that, if at the new trial substantially the same findings should be made, the approximate amount of money given by the judgment debtor to his wife should be found and that it also should be found how much of this money went into the fund with which the property sought to be applied to the satisfaction of the plaintiff’s judgment was purchased.,</p>

<p>Contract for $439.96 as the price of grain sold and delivered according to an account annexed. Writ dated January 6, 1915.</p> <p>In the Superior Court the case was tried before Hall, J. It appeared that the defendant was a corporation established for the following purposes: “To raise, produce, cultivate, prepare, buy, sell, manufacture and deal at wholesale and retail in garden and farm products of all kinds, to raise, purchase, sell and deal in cattle, horses, hogs, poultry and other live stock; to produce, purchase and sell milk, cream, butter, beef, pork, poultry, eggs and all other food products; to manufacture and deal in condensed and all other manufactured forms of milk; to lease, purchase and sell all machinery, apparatus and other articles used in connection with all or any of the purposes aforesaid and generally to do such other business as does not require special authority under the statutes of the Commonwealth of Massachusetts.”</p> <p>George Peabody was the clerk and a director of the defendant. The charges for the grain delivered were made on the plaintiffs’ books to George Peabody. In December, 1914, or January, 1915, the account not being paid, the plaintiffs caused the matter to be looked up and procured a report of the incorporation of the Aiden Lair Farms Association. It appeared in evidence that an account was kept at the National Bank in Williamstown in the name of the Aiden Lair Farms Association; that checks were drawn on this account signed by George Peabody personally; that the father of George Peabody was the owner of a majority of the stock in the defendant corporation and that he furnished the money with which some sixty or seventy head of cattle, a number of horses, hogs and hens were purchased and turned over to the defendant; that the Aiden Lair Farms Association was the owner of the stock, tools and fixtures on the farm; that in June, 1913, George Peabody told one of the persons with whom he was doing business other than the plaintiffs, that that person was charging things to him when he should charge them to the Aiden Lair Farms Association; that thereupon the charges were changed on the books of such person to Aiden Lair Farms Association, a bill was rendered in this name and the bill was paid.</p> <p>The defendant contended that George Peabody was the lessee of the defendant and not its agent, and offered in evidence an unrecorded lease to him of its farm, stock and tools for a term of fifteen years from January 30, 1913, when the lease purported to have been executed. The plaintiffs objected to the admission in evidence of this lease on the ground stated in the opinion. The judge admitted it, subject to the plaintiffs’ exception.</p> <p>The material portions of the judge’s charge to the jury are described in the opinion. The plaintiffs excepted to these portions of the charge. The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>In a deed of land, dated June 27, 1904, and containing covenants of warranty, the description of the land conveyed was as follows: “all the land conveyed to me by Edwin A. Jordan by Warranty Deed dated June 11th 1904 all the land conveyed to said Jordan by the heirs of Luther B. Towers Estate by Warranty Deed dated April 29th 1902 and recorded with Hampshire County Deeds in Book 558, Page 163.” The deed from Jordan to the grantor conveyed to him "all the land conveyed to me by the heirs of Luther B. Tower’s estate by Warranty deed dated Apr. 29th 1902, & recorded with Hampshire County Deeds, in Book 558, Page 163, reserving all the trees standing and down on said premises with the right to cut and carry away the same at any time before Jan. 1st 1924, with the privilege to carry the same over said lot.” The deed referred to from the heirs of Luther B. Tower’s Estate to Jordan conveyed nearly two hundred acres of land in three tracts, described by metes and bounds. The grantee under the first mentioned deed five months before receiving this deed had purchased from Edwin A. Jordan “all the soft timber on a certain tract of Land described in A Warranty Deed given to me by the heirs of the Estate of Luther B. Tower dated April 29th 1902 and recorded with Hampshire County Deeds in Book 558 Page 163,” and was “to have ten years from May 1st 1903 to cut and remove said soft timber from the premises.” Held, that the warranty in the first mentioned deed was merely of the title to the property conveyed by the deed of Jordan, which excepted the right to cut timber for twenty years, and that the reference to the previous deed from the Tower heirs was merely for the purpose of incorporating by reference a description of the land by metes and bounds.</p>

<p>Petition, filed on July 3,1916, for a writ of mandamus addressed to the mayor of Cambridge, commanding him to sign a license of the sixth class granted to the petitioner by the board of aldermen or city council to sell intoxicating liquors in the premises numbered 272 on Broadway in Cambridge maintained by the petitioner as a retail druggist and apothecary.</p> <p>The case was submitted upon an agreed statement of facts to Crosby, J., who found the facts to be as stated in the agreed statement of facts and ruled that under R. L. c. 100, § 22, and upon the facts as stated the power to grant licenses of the sixth class in the city of Cambridge was in the city council alone; that a majority vote of the city council, as set forth in the agreed statement of facts, was a sufficient granting of such licenses of the sixth class; that the mayor had no power of veto over a majority vote of the city council granting such licenses of the sixth class; that the city council is not required, after expressed disapproval by the mayor of such vote, to vote again to grant such licenses by a two thirds vote; and that the writ should issue.</p> <p>At the request of the parties the justice reported the case upon the petition, the answer and the agreed statement of facts for determination by the full court.</p> <p>Among the facts stated in the agreed statement of facts were the following: The city of Cambridge, in December, 1915, voted to adopt Plan B as provided in St. 1915, c. 267, Part III. On the first Monday in January, 1916, the Plan B form of charter became operative in Cambridge and that city since has been working under that form of charter.</p> <p>The case was submitted on briefs. '</p>

Tort as set forth below. Writ dated August 19, 1915. The plaintiffs’ declaration originally contained two counts. A demurrer of the defendants was sustained by Callahan, J., and thereafter the plaintiffs amended their declaration by inserting certain words in the first and second counts and adding a third count which was not demurred to.

<p>Equitable Restrictions. Tax, Deed of land sold for taxes. Words, "One dwelling house.”</p> <p>In a suit in equity by the owner of a lot on the north side of Pearl Street in Springfield opposite the grounds of the United States Armory and Arsenal and west of what formerly was called “the new gate,” against the owner of another lot similarly situated and forming part of the tract of land that formerly belonged to the original grantor of all the lots in the tract, to enjoin him from building an apartment house on his lot, it appeared that the deeds of the original grantor conveying the lots composing the tract contained the following provision or one substantially similar: “Provided and this deed is on'condition that no building shall ever be erected or placed upon the premises nearer to Pearl street than twenty feet and no barn nearer to said street than six rods and that but one dwelling house shall be erected or placed thereon and that shall cost less than two thousand dollars or shall be less than two stories high and it is agreed that the other lots of the grantor westerly of the new gate shall when sold be subject to similar restrictions and be for the benefit of both parties hereto their heirs and assigns.” All the deeds were recorded. The original grantor also mortgaged certain of the lots “subject to such restrictions as to placing buildings thereon as I have stipulated and made in my previous conveyances on record of lots on said street.” Held, that the language of the restrictions and the situation of the lots opposite the grounds of the United States Armory and Arsenal with the reasonable probability that those grounds would remain open perpetually showed that the words “that but one dwelling house shall be erected or placed thereon” referred to a dwelling to be used by one family and not merely to the form of structure, and that the erection of an apartment house must be enjoined.</p> <p>A deed given in pursuance of a sale for non-payment of taxes becomes void if not recorded within thirty days from the day of sale as was required by Gen. Sts. c. 12, § 35, and as now is required by St. 1909, c. 490, Part II, § 44, as amended by St. 1911, c. 370, and St. 1915, c. 237, § 1.</p> <p>It is well settled that restrictive covenants in deeds, whether conferring benefits or imposing burdens, will pass to and bind the grantees and assignees of the respective parties who had actual or constructive notice of the restriction, and that the record of the deed in the registry of deeds is constructive notice.</p> <p>In the case above .described, it appeared that the original grantor included in the above mentioned mortgage made by him four of the lots as one parcel and that at a foreclosure sale under a power in the mortgage the mortgagee sold each of the four lots separately, one of which passed by mesne conveyances to the defendant. Held, that, under the covenants in the deeds and the mortgage above described, the restriction as to building only one dwelling house applied to each of the four lots sold by the mortgagee under the power of sale.</p>

<p>Tort for personal injuries sustained on July 29, 1911, when the plaintiff was in the employ of the defendant, who was constructing a dam for the city of Holyoke at the White reservoir in that city. Writ dated December 13, 1911.</p> <p>The declaration contained five counts. The first count was as follows: “And the plaintiff says that on or about the twenty-ninth day of July, 1911, he was in the employ of the defendant; that it was the duty of the defendant to give him sufficient instructions how to properly perform his duty as such employee; that it was the duty of the defendant to give him sufficient notice of the dangers and perils incident to his duty as such employee; that the defendant had reason to know of such perils and dangers; that the defendant failed to give him such instructions and such notice, whereby the plaintiff, while in such employ, and while in the exercise of due care and diligence, was injured, and suffered great pain of body and anguish of mind, and paid out large sums of money for medicines and medical attendance, and was permanently injured and unable to work at his trade, and his hand and fingers were cut off.”</p> <p>The second count alleged a defect in the ways, works or machinery of the defendant; the third count alleged negligence of a superintendent; the fourth count alleged negligence of one acting as superintendent; and the fifth count alleged a negligent failure to furnish the plaintiff with suitable machinery or appliances for his work and negligence in failing to keep the machinery and appliances in suitable repair and condition.</p> <p>The plaintiff also filed specifications as to each count of his declaration. The specifications as to the first count were as follows: “The plaintiff says the work at which he was set by the defendant, of the perils and dangers of which he was ignorant, was that of working on a certain planer; the dangers and perils of which he was ignorant were the danger of getting his hand caught in the knives in the rear of said planer, the danger of putting his hand on or near the board, of brushing off chips, or taking off chips from said planer board, of the fact that there was no guard, roll or anything else to prevent his hands from going into or being thrown into said knives; of the presence of defects hereinafter mentioned in said planer; of the tendency of planks going through said planer to jog or shake or be drawn'back into said planer.”</p> <p>In the Superior Court the case was tried before Hitchcock, J. The evidence is described in the opinion. At the close of the ■evidence the judge submitted to the jury three special questions, which, with the action of the jury upon them, were as follows:</p> <p>“1. Was the plaintiff, Fitzgerald, directed by Monte to help on the planer at the time when he was injured? ”' The jury disagreed.</p> <p>“2. Was the plaintiff, Fitzgerald, in the exercise of due care when he was injured? ” The jury disagreed.</p> <p>“3. Was the planer on which the plaintiff, Fitzgerald, was injured in a defective or dangerous condition, that was known to the defendant, and not known to the plaintiff, and not obvious on inspection, at the time the plaintiff was injured? ” The jury answered "No.”</p> <p>By direction of the judge the jury, having answered the third question in the negative, returned a general verdict for the defendant. The plaintiff alleged exceptions, including certain exceptions in regard to the admission of evidence which are described in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Appeal. Mandamus.</p> <p>No appeal lies from an order made by a single justice dismissing a petition for a writ of mandamus.</p>

<p>Constitutional Law, Apportionment of representation. House of Representatives. Suffolk County Apportionment Commissioners.</p> <p>Suffolk County comprises the city of Boston, divided into twenty-six wards, the cities of Chelsea and Revere, each divided into five wards, and the town of Revere. The unit of representation for the county is 3,258 voters. The number of voters in the smallest ward in Boston exceeds this unit by almost 700. Under art. 21 of the Amendments to the Constitution each representative district must consist of contiguous territory, “no town or ward of a city shall be divided therefor” and no district “shall be entitled to elect more than three representatives.” In the division into districts and the apportionment of representation made by the third report of the Suffolk County apportionment commissioners elected under St. 1913, c. 835, § 390, the most serious inequality shown on the face of the report was between a district of 4,854 voters, which was given two representatives, being one for each 2,427 voters or 831 less than the unit of representation, and a district of 4,282 voters, which was given only one representative, making an excess of 1,024 voters above the unit. To the cities of Chelsea and Revere three representatives were assigned, and the aggregate number of legal voters in the two cities lacked only 929 of being four times the unit of representation. Two other districts, each with three representatives, contained respectively 11,510 and 11,262 voters, or 3,836 and 3,754 voters for each representative. It was held, that, while the division and apportionment made by the report were not ideal, the question was not whether in the opinion of this court there could have been a closer approximation to equality, because the work was to be done by the commissioners, whose duty it was to exercise their sound judgment and practical wisdom in selecting'the best among the various possible methods "for forming the districts, and that the inequalities of voting power between the different districts, as created by the division and apportionment made by the report, were not so great, and the means of avoiding them were not so clear, as to compel this court to decide that there was a grave and unnecessary inequality between the different districts in violation of the requirements of the Constitution.</p>

<p>Practice, Civil, Conduct of trial: trial together of different cases, order of evidence, New trial, Experiments in jury room. Evidence, Materiality, Remoteness, Of record kept in course of business, Opinion: experts. Jury and Jurors. Fire. Railroad, Fire communicated by locomotive engine.</p> <p>An order, directing that an action by the alleged owner of certain real estate against a railroad corporation for damage to the plaintiff’s buildings by a fire alleged to have been communicated by a locomotive engine of the defendant shall be tried together with another action for the same alleged damage brought by another person claiming to be the owner of the property damaged by fire, is a matter within the discretionary power of the presiding judge.</p> <p>• At the trial together of the actions mentioned above, the plaintiff in the first action was a witness for himself and, as the alleged owner of the buildings, was asked the value of the buildings destroyed by fire, and the presiding judge stated that, as it was a question who was the owner of the property, he would exclude the question for the present. Held, that this temporary exclusion of the evidence gave no ground for exception, because, if it appeared later in the trial that there was evidence for the jury of that plaintiff’s title, that plaintiff could offer again his evidence of value.</p> <p>In the cases above described the jury found that the fire was not communicated by a locomotive engine of the defendant, so that evidence of the extent of the damage and the value of the property became immaterial.</p> <p>In the same cases tried together, it also was held, that questions relating to the admission of evidence in regard to the title of the respective plaintiffs to the property damaged by fire, each of whom contended that the property belonged to him and not to the other plaintiff, likewise had been made immaterial by the finding that the damage was not caused by the defendant.</p> <p>In an action against a railroad corporation for damage to the plaintiff’s buildings alleged to have been caused by a fire communicated by a locomotive engine of the defendant, a witness for the plaintiff was asked, “Whether or not you have seen fires set from other sparks from engines?” The presiding judge excluded the question. The same witness was permitted by the judge to testify to her knowledge of fires in the particular locality where the damage occurred caused by sparks from locomotive engines. Held, that there was no error in the exclusion of the question.</p> <p>In the same case it appeared that the fire that caused the damage started in a certain mill belonging to a corporation which stood near the railroad track, and the defendant contended that the fire originated in the mill and was not caused by sparks from any of its engines. The treasurer and general manager of the mill corporation was a witness for the plaintiff and there was evidence tending to connect him with the cause of the fire. Subject to the plaintiff’s exception the defendant was permitted to ask this witness on cross-examination whether the plant of the mill corporation standing in the same place was burned in the previous year. The witness also was permitted to testify that he had a trust deed of the property. Held, that this evidence properly might be admitted by the presiding judge in the exercise of his discretion, the evidence of the former fire tending to show the origin of the later one and the deed being admissible to explain the motive and intent of the witness if he had set the fire or caused it to occur.</p> <p>In the same case it was held, that the admission of evidence that the mill corporation was insolvent and showing the amount of its debts, and the admission of evidence of the records of the corporation so far as they authorized the deed of trust to its treasurer and general manager, as well as the admission of evidence of what occurred at the meeting when this vote was passed, although the bearing of the evidence thus admitted was somewhat remote, could not be said to have constituted errors of law.</p> <p>In the same case it was held that the judge properly refused to allow the plaintiff to ask the treasurer and general manager of the mill corporation, whom he had called as a witness, “Whether or not, before the fire [m question] his property situated where the . . . mill [of the corporation] was burned, was injured by a fire communicated by sparks from an engine or a locomotive of [¡the defendant], causing a loss for which they adjusted with you? ”</p> <p>In the same case it was held that there was no error in the exclusion by the judge of a question, put by the plaintiff to this same witness, “How many buildings — wooden buildings — have you owned in your lifetime? ” offering to show that the witness had owned a great many wooden buildings in various parts of New England and that the only fire he had had was in the place where this fire occurred and near the defendant’s railroad.</p> <p>In the same case it was held that the defendant’s train dispatcher properly was permitted to testify from his record as to the time when trains passed the station in the town where the fire in question occurred, his record having been made up from information reported to him by telegrams from the agents at different stations to show the passing of trains, and having been kept by him in the usual course of business.</p> <p>In the same case it appeared that the roof of the mill where the fire started was covered with a certain kind of roofing and that this roofing had been exposed to the weather for about a year and was broken in places. A witness, qualified as an expert, was asked by the plaintiff, If “there is a weak spot in that roof for a spark from an engine to lodge and eventually to set fire to the wood underneath, and the fire had been set, will you tell the jury whether or not it would be possible for that fire to smoulder undiscovered, before it broke out into flame, for a period of three quarters of an hour or more?” The judge excluded the question as asking for the opinion of the witness on a matter which was not one of expert knowledge. Held, that the exclusion was right, because the jury as men of ordinary experience had sufficient knowledge to pass on this question without the aid of expert testimony.</p> <p>In the case above described the jury returned a verdict for the defendant, and the plaintiff moved to have the verdict set aside on account of alleged misconduct of the jury. An exhibit of the roofing material before its exposure to the weather had been put in evidence and was taken to the jury room. The question had been raised and discussed at the trial, whether the roofing material in use on the mill was inflammable. After the jury had left the jury room, a number of brunt matches were found there, and the plaintiff offered to show that the jury had experimented with the material and had attempted to light it. The presiding judge ruled that, even if this fact were established, it would not be a sufficient ground for disturbing the verdict. Held, that, assuming that the jury did test the material by trying to set it on fire and that this fact could have been shown without invading the privacy of the. jury room and relying on the testimony of jurors, no such misconduct on the part of the jury was shown as to require a new trial, especially as there was nothing to show what the result of the experiment was or how the plaintiff could have been harmed by it.</p>

<p>Contract, What constitutes. Equity Jurisdiction, To compel specific performance. Corporation, Construction of vote. Equity Pleading and Practice, Master’s report.</p> <p>In a suit in equity against an incorporated Grand Army Post to enforce the specific performance of an alleged contract to purchase certain real estate, it appeared that the plaintiff had offered to sell the real estate to the defendant, and that the defendant had passed a vote, “That the president be directed to have the title to the property No. 48 on Bliss street examined and if found good, to purchase said property at a cost not exceeding $26,000: and procure a good and sufficient warranty deed of the same to this corporation,” that the defendant’s president soon after the vote was passed employed a title company to examine the title, and that before the title company had made its final report on the title the defendant voted to rescind the vote quoted above. Held, that the vote quoted was not an acceptance of the plaintiff’s offer but only gave the defendant’s president authority to buy the property for the defendant, and apparently only to do so in case the title should be found to be good, and that, before the president had taken any action in the matter except to employ a title company to examine the title, his authority was withdrawn by the vote of rescission.</p> <p>In the same case it was held, that for the same reason, namely, that the vote was only preliminary to action by the president which never was taken, the vote could not be construed to be an offer to purchase the plaintiff’s land.</p> <p>In a suit in equity the plaintiff excepted to a master’s report, because the master had permitted to be annexed to it certain portions of the evidence which the defendant first had asked to have annexed after the master’s draft report had been submitted to the parties, and this court, after they had reached a conclusion which was founded upon the master’s report alone and in no respect upon the evidence reported by the master, held that the exception had become immaterial.</p>

<p>Contract, Performance and breach, Rescission. Equity Jurisdiction, Fraud, Mistake. Evidence, Competency.</p> <p>In a suit in equity brought against a city by a contractor, who had made a contract with the defendant to build a concrete masonry dam across a certain brook and, after proceeding with his contract for more than seven months, had abandoned it, and now sought to rescind the contract and recover for work and materials on a quantum meruit basis on the ground of fraud on the part of the defendant in estimating falsely the quantities of material and labor necessary for the work or on the ground of mutual mistake, it appeared that, while some of the estimates were grossly inadequate, the defendant was ignorant of this and made no pretence of knowing the exact amount of labor and material required for the work, that it was understood by the plaintiff and the defendant that the estimates of the rock surface, the required depth of rock excavation and the character of the material were not even approximately correct, that the estimate, of the amount of work to be done was merely approximate, and that it was stated plainly in the “Information for Bidders” that there was no express or implied agreement “that the actual amount of work or material will correspond therewith,” the estimates having been made solely as the basis for the uniform comparison of bids, that the plaintiff was informed before he put in his bid that changes would be made in the location of the dam, that he was given the fullest opportunity to examine the proposed location, that the exact site of the proposed location, which afterwards was adopted, was pointed out to him on a plan before he made his bid and was “staked out” in the presence of his foreman. Held, that there was no evidence of fraud or of mutual mistake.</p> <p>In the suit above described, the plaintiff excepted to a ruling of the master admitting evidence of a conversation of the plaintiff with the defendant’s engineer, before the plaintiff’s bid was made, in which the plaintiff was told that it had been decided to place the gatehouse on the “up-stream side of the dam,” this being one of the changes of plan which the plaintiff sought to make a ground for rescission, and it was held that the evidence was clearly admissible on the question of fraud and mistake.</p>

<p>.Equity Pleading and Practice, Master’s report. Trust, Discretionary power of trustee.</p> <p>In a proceeding in the Probate Court an exception to a master’s report, where the evidence is not reported, on the general ground that the master’s finding of fact is erroneous, presents no question of law or fact.</p> <p>Where a trustee under a will for the benefit of a beneficiary for life is authorized by the terms of the trust, not only to pay the net income of the trust fund to such beneficiary for life, but also, “if in the opinion of the trustee hereunder the said income ... shall be insufficient for the comfortable maintenance and support of the said [beneficiary, the trustee is authorized and empowered] to pay to or for the benefit of the said [beneficiary] such portions of the principal of said trust estate as in the opinion of my trustee may be necessary for her comfortable maintenance and support, it being expressly understood that said payments of principal are not obligatory upon my trustee but are left solely to his sound discretion and judgment,” the discretionary power of the trustee, so long as he acts in good faith and not arbitrarily or capriciously, is not subject to revision by any court.</p>

<p>Petition, filed in this court on November 9, 1916, to establish the truth of exceptions alleged by the defendants in an action of contract, which was brought in the Superior Court by the assignee, under a common law assignment for the benefit of creditors, of the members of a partnership doing business in Lynn under the firm name of Judkins-Howes Company, to recover a balance alleged to be due for use and occupation of a part of a certain store.</p> <p>The exceptions were disallowed by Jenney, J., whose certificate was as follows:</p> <p>“I disallow the foregoing bill of exceptions because in my opinion the same is not conformable to the facts.</p> <p>“This case came on to be heard on the defendants’ motion to recommit the same to the auditor, and on the plaintiff’s motion for judgment on the auditor’s report. The defendants’ motion was not verified by affidavit, no evidence was offered in support thereof, and the facts on which the defendants relied were not admitted by the plaintiff.. After hearing, and upon consideration of the case, I denied the motion to recommit and ordered judgment on the auditor’s report. To this action the defendants excepted. No other exceptions were taken.</p> <p>“The matters referred to in paragraphs 5 to 12, both inclusive, of the defendants’ bill of exceptions [relied upon by the defendants as the ground for recommitting the auditor’s report and described briefly in the opinion] did not appear before me by any evidence or through any source admissible' as evidence, or by agreement of parties; and if I had been authorized to make any findings as to the same I could not have done so. This action has been taken after hearing the parties.”</p> <p>On November 14, 1916, the respondent, the plaintiff in the action at law, filed in this court a motion that the petition^ to establish the truth of the alleged exceptions be dismissed without the appointment of a commissioner.</p> <p>The first paragraph of Rule 24 of the Superior Court is as follows: “The court will not hear any motion grounded on facts, unless the facts are verified by affidavit or are apparent upon the record and the papers on file in the case, or are agreed and stated in writing signed by the parties or their attorneys. The same rule shall be applied to all facts relied on in opposing any motion.”</p>

<p>Negligence, Causing death, Of one controlling real estate. Workmen’s Compensation Act. Damages, In tort. Evidence, Relevancy.</p> <p>Where an employee of a subscriber under the workmen’s compensation act died as the result of an injury received in the course of his employment and compensation under the act was awarded to his widow, who was the administratrix of his estate, this is no bar to an action brought under St. 1911, c. 751, Part III, § 15, by the insurer, who paid the award, against a third person, not the employer of the deceased, whose negligence caused his death, in the name of the administratrix of the deceased to enforce the defendant’s liability for causing his death imposed by R. L. c. 171, § 2, as amended.</p> <p>In such an action as above described it is proper for the plaintiff in interest to allege in its writ that the action is brought in the name of the administratrix for the benefit of the insurer, but such an allegation is not essential to the maintenance of the action.</p> <p>In an action under R. L. c. 171, § 2, as amended, by the administratrix of the estate of an employee of a contractor, who had been engaged by the defendant to repair a water tank on the roof of the defendant’s factory building, for negligently causing the death of the plaintiff’s intestate, where the only material question was whether there was any evidence for the jury of the defendant’s negligence, it could have been found that the uprights supporting the tank on the roof rested on brick piers, that, from the vibration caused by the operation of the defendant’s machinery and also from age and exposure to the weather, the uprights and the braces connecting them had become so corroded that the tank was swayed by the wind and the brick piers had been weakened, and that, while the intestate was at work adjusting and bolting on new braces, using proper appliances and exercising ordinary mechanical skill, the piers suddenly gave way, carrying in their collapse a part of the outer wall, the tank plunged downward and the intestate was thrown to the ground and killed. There also was testimony of experts from which it could have been found that the foundations of the tank were not originally “a good form of construction” to support a tank of its capacity and that from the lapse of time the structure had become unsafe and dangerous when subjected to the strain necessarily required in making the repairs. It also could have been found that, if the defendant, knowing that the repairs were to be made, had exercised ordinary diligence, he would have discovered by proper investigation the defective conditions before inviting the contractor’s employees to repair the tank, thus exposing them to dangers that were not apparent to them upon reasonable observation. Held, that the case was for the jury.</p> <p>In the same case it was held that the intestate, who had been sent to repair the tank by adjusting and bolting on new braces, did not by his contract of employment assume the risk of the brick piers giving way, and that, whether he was in the exercise of due care and whether he voluntarily assumed the risk of an injury arising from the weakness of the piers, were questions of fact.</p> <p>In the case above described, brought by the insurer under the workmen’s compensation act for its own benefit in the name of the administratrix of the estate of the intestate, it was held, that evidence offered by the defendant of the proceedings before the Industrial Accident Board in which an award was made to the nominal plaintiff properly was excluded, it not having been shown to be in any way relevant either on the question of liability or on the question of damages.</p>

<p>Mill Act. Electricity. Nuisance. Words, “ Water mill.”</p> <p>A mill, which is operated by water power to generate electricity to be transmitted and sold, is a water mill under R. L. c. 196, commonly known as the mill act, which provides, in § 1, that "A person may, as hereinafter provided, erect and maintain a water mill and a dam to raise water for working it, upon and across any stream not navigable.”</p> <p>Whether a mill is a water mill within the meaning of R. L. c. 196, § 1, depends on the power that drives its machinery and not on the character of its product.</p> <p>A dam to raise water for working a water mill within the meaning of R. L. e. 196, § 1, cannot constitute a nuisance, the remedy for damages caused by such a-dam being restricted by § 19 of that chapter to a petition under § 4.</p>

<p>Order. Assignment. Bankruptcy, Unlawful preference.</p> <p>Partners, who had applied to the license commissioners of Worcester for a license to sell intoxicating liquors, borrowed from a brewing company-$1,000, which they deposited with the city treasurer to be applied on their liquor license, “if granted,” and gave to the brewing company as security for the loan the following order signed by them and addressed to the city treasurer: “If we are not successful in having a liquor license granted to us, pay to [the brewing company], or order, the sum of one thousand ($1,000) dollars deposited with you this day as advance payment or deposit with our application for liquor license.” The order was presented promptly by the lender to the city treasurer. It was the intention of the signers of the order and of the lender that the order should operate as an assignment of the amount deposited with the city treasurer, subject only to the contingency that the deposit might be retained by the treasurer in payment of the fee due for the liquor license, if granted. The license was refused. Afterwards the applicants "were adjudicated bankrupts. At the time of the application for the license and the delivery of the order they were insolvent, but there was nothing to show that the order was not executed and delivered in good faith and without fraud. The trustee in bankruptcy of the applicants for the license brought an action of contract against the city to recover the deposit of $1,000.- The brewing company intervened as claimant and claimed the $1,000 under the order. Held, that the order, having been given as security for a present indebtedness, operated as an assignment and none the less so by reason of the limitation contingent on the happening of a future event, which had not occurred, and that a finding was warranted that the money deposited with the city treasurer was the property of the claimant.</p> <p>In the same case it appeared that, at the time of the loan and the giving of the order as security the lender knew that the borrowers were insolvent but it also appeared that they had not at that time been adjudicated bankrupts, and it was held that the giving of the order as security in good faith was not an unlawful preference under the bankruptcy act.</p>

<p>Three actions of tort, the first by the owner of a motor car for damage to it and for expenses incurred for medical attendance upon and nursing of his wife, and the second and third actions respectively by the wife of the plaintiff in the first case and by a friend of such wife for personal injuries sustained by them when travelling in the motor car driven by a servant of the plaintiff in the first case, all incurred on January 10, 1913, and alleged to have been caused by a recumbent disused pole of the defendant improperly and negligently placed and allowed to remain on Central Avenue, a public highway in the town of Weston. Writs dated January 10, 1914.</p> <p>In the Superior Court the cases were tried together before Hamilton, J. The facts in regard to the happening of the accident which could have been found upon the evidence are stated in the opinion.</p> <p>During the trial David L. Gallup, a professor of the Worcester Polytechnic Institute, was called by the defendant as a motor car expert, and was asked by the defendant the following question: “Whether or not in your judgment it was not safe and proper to operate a limousine car of the weight of the car in this case, with the extra load of gas tank and tires and four passengers, over a State highway of smooth macadam, that was slushy and icy and having some bare spots and wet places, without chains?” The plaintiff objected, and the judge admitted the evidence. The plaintiff excepted. The witness answered that in his judgment it was not safe and proper.</p> <p>At the close of the evidence, upon motion of the defendant, the judge ordered a verdict for the defendant in each of the three cases; and the plaintiffs alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff on December 23, 1913, and alleged to have been caused by the negligence of the defendant’s servants when the plaintiff was attempting to enter a street railway car of the defendant as a passenger at or near the corner of Main Street and Franklin Street in Worcester. Writ dated July 2, 1914.</p> <p>In the Superior Court the case was tried before King, J. The only evidence upon the question of liability was the testimony of the plaintiff, which is described in the opinion. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort, the first for personal injuries, and the second for the death of a horse and damage to a buggy and harness, all alleged to have been sustained on the evening of August 1,1914, when Harriet Marsal, the plaintiff in the first case, was seated by the side of plaintiff in the second case in a buggy in which that plaintiff was driving on Harrington Street in Shrewsbury and they were run into by a motor car owned by the defendant and operated by one Haas, who was alleged to have been the defendant’s servant or agent. Writs dated September 11, 1914.</p> <p>In the Superior Court the cases were tried together before Dana, J. The plaintiffs called as witnesses the defendant and Haas.</p> <p>At the close of the plaintiffs’ evidence, upon the defendant’s motion, the judge ordered a verdict for the defendant in each of the cases, and reported the cases for determination by this court upon the agreement of the parties that, if the order of the judge directing verdicts for the defendant was right upon the legally admissible evidence reported, judgment was to be entered for the defendant in each case. If the order of the judge was wrong, judgment was to be entered for the plaintiff Marsal in the sum of $400 and for the plaintiff Haskell in the sum of $100.</p> <p>The cases were submitted on briefs.</p>

<p> 'Workmen’s Compensation Act. Proximate Cause. </p> <p>Where a workman of an fee company, employed in the work of storing in an ice-house ice taken from the pond of his employer, was returning at the end of his day’s work to his home on the other side of his employer’s pond, and crossed the pond on the ice, this being the "reasonable and customary way,” although not the only way, to reach his home and being the way "regularly” used by him and his fellow employees who lived in the same direction, and where, while thus crossing the pond, the employee broke through the ice and was drowned, in a claim by his dependent widow under the workmen’s compensation act it can be found that the injury to the employee resulting in his death arose out of and in the course of his employment.</p>

<p>Practice, Civil, Exceptions, Trial of cases together. Evidence, Competency. Words, “ Cannot.”</p> <p>Upon the argument of exceptions to the exclusion of certain evidence at a trial, where the excepting party had failed to state what he proposed to prove by the evidence offered and excluded, it was said that in the present case, although this failure alone was sufficient ground for overruling the exceptions, this court preferred to base their opinion upon the ground that, whatever the excepting party expected to prove by the evidence, it was excluded properly.</p> <p>In an action to recover damages for a breach of a contract in writing to sell certain land to the plaintiff at a certain price, evidence offered by the plaintiff to show the instructions given by the defendant to a real estate broker, who claimed to be entitled to a commission for making the sale, must be excluded, if the broker testifies that the instructions inquired about were given to him before the contract sued upon was signed.</p> <p>Together with the action above described there was tried an action by the broker against the alleged seller to recover a commission for bringing about the sale of land which the defendant refused to complete, and the plaintiff broker contended that the evidence of the instructions given to him before the making of the contract was admissible in his action because he was not a party to the contract. By an agreement of the parties under which the actions were tried together it was stipulated “that both plaintiffs were entitled to recover or that neither was entitled to recover.” Held, that under this agreement the right of the plaintiff broker to recover a commission was dependent wholly on whether the defendant was bound by the contract in writing to convey the land to the plaintiff purchaser, and that, if he was not so bound, no commission could be recovered, so that by the terms of the stipulation the evidence was made incompetent in the broker’s action also.</p> <p>In an action to recover damages for the breach of a contract in writing to convey certain real estate to the plaintiff at a price named, it appeared that mortgages upon the real estate were held by B and W, and the contract, after providing that arrangements were to be made with B and W whereby the mortgages held by them were to be discharged and three new mortgages were to be given them as their interests might appear to an amount named, stipulated that, “if however said arrangements with said B and W cannot be perfected, this agreement is to be void and of no effect.” Just below in the contract it was stipulated that “if same are perfected” the real estate broker making the arrangements shall receive a commission. The real estate broker failed to make the desired arrangements with B and W. During the trial the real estate broker, as a witness, for the plaintiff, was asked whether during his talks with B and W there was anything said with reference to the exact amount that was due to either one of them, and answered, “Yes.” On objection of the defendant the presiding judge excluded the question and answer. Held, that the exclusion was right; that the words in the condition of the stipulation "cannot be perfected” meant “are not perfected,” that consequently by the terms of the stipulation the agreement to convey the real estate had become “void and of no effect,” and that under these circumstances it was of no consequence what amounts were due under the mortgages then held by B and W.</p>

<p>Libel for divorce, filed on August 10, 1915.</p> <p>The case was heard by Lawton, J., who made the statement of the evidence which is quoted in the opinion. The judge refused to rule at the request of the libellant that on the statement of the evidence made by the judge the libellant was entitled to a decree of divorce. The judge ordered that the libel be dismissed; and the libellant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p> Landlord and Tenant. Garage. </p> <p>Where a lease of a certain building, after using the words “lease” and "demise,” describes the leased premises as "the garage” at a certain number on a street named, the lessee covenants to “pay for all gas, electricity, heat and water used by him in conducting the said garage” and the right is given to the lessee “to sublet or sublease the aforesaid premises to [a. certain corporation] for garage purposes,” these words and phrases do not by implication or otherwise restrict the right of the lessee to use the premises for any lawful purpose, and there is no implied warranty that the premises when leased were or that they will continue to be fit or usable for the purposes of a garage. In an action on the covenant to pay rent contained in the lease above described it was held that the presiding judge rightly excluded evidence offered by the defendant of police regulations that went into effect about two and a half years after the date of the lease, which made it unlawful to use the leased building for a garage without changes and alterations that would cost between two and three thousand dollars, which the plaintiff refused to make.</p>

<p>Practice, Civil, Removal of default. Words, “Good cause.”</p> <p>By the provisions of R. L. c. 173, § 54, that courts “may, for good cause shown, extend the time for entering an appearance, and may, in their discretion and upon terms, take off a default at any time before judgment,” power is conferred upon the courts to remove a default whenever in the exercise of judicial discretion a default ought to be removed.</p> <p>Where in an action of tort after the defendant has been defaulted and the plaintiff’s damages have been assessed by a jury but before judgment has been entered, the defendant moves that the default be removed and that he be allowed to file an appearance and answer and to be heard upon the merits, and it appears that his failure to appear and answer was due to a misunderstanding of the significance of the filing by him of an attachment bond and to a mistake in the office of his attorneys due to the summons not having been placed in their hands by him, and affidavits filed by him disclose an adequate defence to the action, “good cause” in the terms of the statute is shown, warranting the court, in the exercise of judicial discretion, in removing the default, setting aside the verdict, permitting the filing of an appearance and answer, and ordering a trial of the action upon its merits.</p> <p>In such a case, the power of the court to make the orders setting aside the verdict, permitting the filing of an appearance and answer, and ordering the trial upon the merits, is incident to the power given by the statute to remove the default.</p> <p>Such a motion to remove a default and to set aside a verdict assessing damages is in no proper sense a motion for a new trial.</p>

<p>Constitutional Law, Police power. Plumber, License. State Examiners of Plumbers. Board of Health, State. Mandamus. Words, “Master or employing plumber.”</p> <p>One licensed only as a journeyman plumber, who has a place of business where he carries a stock of materials usual and necessary for doing the plumbing business, contracts to do plumbing work and employs other journeyman plumbers, is engaged in the business of a “master or employing plumber,” as'defined by St. 1909, c. 536, § 9, and is violating the provisions of St. 1909, c. 536, § 10, amended by St. 1914, c. 287, prohibiting a person from engaging in business as a master or employing plumber who has not been registered or licensed so to do in accordance with the provisions of that statute.</p> <p>Plumbing bears so close a relation to the public health that its regulation as to those conducting the business as well as the craftsmen working at the trade is subject to legislative control within reasonable limits.</p> <p>The provisions of St. 1909, c. 536, as amended by St. 1914, c. 287, relating to the examination and licensing of plumbers, are regulations within reasonable limits and are constitutional.</p> <p>The provisions of St. 1909, c. 536, § 2, that “The State examiners of plumbers may make such rules as they deem necessary for the proper performance of their duties, which rules shall take effect when approved by the State board of health,” do not give the examiners power to make, with the approval of the State board of health, a rule that a person licensed as a journeyman plumber cannot take an examination for nor be licensed as a master plumber until the lapse of three years from the date of his license as a journeyman plumber.</p> <p>Whether a statute to the effect, that no one could be licensed as a master plumber until he had been licensed as a journeyman plumber for three years, would be constitutional, here was stated to be a serious question, but was not decided.</p> <p>The invalidity of a rule of the State examiners of plumbers unjustly prohibiting a journeyman plumber from taking an examination for a license as a master plumber until the lapse of three years from the date of his license as a journeyman plumber is no defence to a complaint against a journeyman plumber for engaging in the plumbing business as a master plumber.</p> <p>The remedy of such a journeyman plumber, upon being refused an opportunity to take the examination for a license as a master plumber, is by a petition for a writ of mandamus to compel the examiners to give him a reasonable examination as to his qualification for such a license.</p>

<p>Tokt for personal injuries received on July 22, 1911, while employed as one of the workmen at work with a steam derrick in a granite quarry of the defendant. Writ dated July 16,1912.</p> <p>In the Superior Court the case was tried before Irwin, J., the plaintiff electing to rely only on a count of the declaration which alleged that his injury was caused by incompetence of one of the defendant’s servants. At the close of the plaintiff’s evidence the judge ruled that the plaintiff was not entitled to recover and by agreement of the parties reported the case to this court for determination, judgment to be entered for the plaintiff in the sum of $1,500 and costs if the ruling was wrong; otherwise, judgment to be entered for the defendant.</p>

<p>Bills and Notes, Payment. Mortgage, Of real estate. Evidence, Presumptions and burden of proof. Contract, Consideration.</p> <p>In this action of contract for a balance alleged to be due upon a promissory note after a sale in foreclosure of a mortgage of real estate which had been given to secure its payment, the defendant, in support of an allegation of payment, contended that certain money received by the plaintiff from an insurance company should be recorded as a payment, but it was held, that the evidence did not support his contention, since it appeared that the money was expended in repairing the mortgaged property.</p> <p>In further support of the allegation of payment, the defendant contended that the amount realized at the foreclosure sale was inadequate and that he should be credited with what should have been received; but it was held, that, assuming that the validity of the foreclosure proceedings was open to the defendant, which was not decided, it appeared that they were in accordance with statutory requirements, that there was no direct evidence that the amount paid was inadequate and that no inference of invalidity because of inadequacy of price could be drawn from the fact that a mortgage given to the plaintiff by one who had purchased at the foreclosure sale for him exceeded in amount the price for which the property was sold at foreclosure, because the mortgage included an additional amount expended by the plaintiff for repairs, nor from the fact that a price for which the purchaser at the foreclosure sale subsequently sold the property was in excess of the price at the foreclosure sale, because at the time of-the subsequent sale the property had been improved.</p> <p>An agreement by a mortgagor of real estate that he will allow the mortgagee to foreclose the mortgage, which is overdue, is no consideration for an alleged promise on the part of the mortgagee to cancel the mortgage note.</p>

<p>Equity Jurisdiction, To relieve from fraud. Equity Pleading and Practice, Appeal, Master: report, refusal of requests, motion to recommit, Amendment to bill.</p> <p>If, in a suit in equity in which the plaintiff alleged that, by fraud of the defendant and of attorneys employed by the plaintiff, one of whom also was employed by the defendant, who conspired together for the purpose, she had been induced to convey to the defendant for 3800 property worth 32,500, a master finds, without a report of the evidence, that the defendant did not conspire as alleged, that the conveyance was for a valuable consideration and that it was obtained by the defendant without fraud or conspiracy, and a decree is entered dismissing the bill from which the plaintiff appeals, the decree must be affirmed.</p> <p>An appeal from a decree overruling exceptions to refusals of a master to grant requests for findings of fact, although they are entitled “requests for rulings,” raises no question of law.</p> <p>In the suit described above, upon the findings of the master that the defendant did not participate in any fraud, it is immaterial whether or not the plaintiffs’ attorneys were guilty of fraud, and therefore a motion, filed after the filing of the master’s report, to amend the bill by adding allegations setting forth specifically the alleged fraud of the plaintiffs’ attorneys and the connection of one of them with the defendant, and a motion to recommit the report to the master with instructions to make specific findings as to those allegations, are matters within the discretion of the court and properly may be denied.</p>

<p> Workmen’s Compensation Act. </p> <p>If an employee of a manufacturing corporation in lifting a heavy box in the course of his work sustains an injury, the serious result of which is not apparent at the time, and returns to work at the end of four weeks without making any claim under the workmen’s compensation act, and two and one half years after the injury the employee is obliged to stop work and thereafter is unable to work, and if a medical examination discloses the existence of a movable or dislocated kidney caused by the original injury, and about three months thereafter the employee files a claim under the workmen’s compensation act, it cannot be found that the claim was made seasonably within the meaning of St. 1911, c. 751, Part II, § 15, requiring that a claim for compensation shall be made within six months after the occurrence of the injury, but it is a question to be determined by an arbitration committee and the Industrial Accident Board, whether 'the circumstances were such that under § 23 of Part II, added by St. 1912, c. 571, § 5, it can be found that the failure to make the claim within the period prescribed by § 15 "was occasioned by mistake or other reasonable cause” and therefore' is not a bar to the maintenance of proceedings under the act.</p> <p>Where in a claim under the workmen’s compensation act it is found under St. 1911, c. 751, Part II, § 23, added by St. 1912, c. 571, § 5, that a failure to make the claim within the six months prescribed by § 15 was occasioned by mistake, it becomes necessary to consider whether the claim was filed within a reasonable time after the mistake was discovered, and in deciding what is a reasonable time all the circumstances of the case in relation to, the rights of the insurer as well as to those of the claimant are to be taken into account.</p> <p>In a claim under the workmen’s compensation act a finding of the Industrial Accident Board “that the employer had knowledge of the injury” may be based wholly on a report of the injury made to the Industrial Accident Board by the employer the day after it happened, although the report was not formally introduced in evidence in the proceedings upon the claim.</p> <p>In the same case it was said that any report which is on file with the Industrial Accident Board may be used as a ground of decision by an arbitration committee or by the board in passing upon the claim to which it relates without its formally being put in evidence.</p> <p>In the same case it also was said that it would be improper for the Industrial Accident Board to base a finding on a correspondence and interviews which in no way appear in the record.</p>

<p>Landlord and Tenant, Insurance of premises, Covenant to insure. Insurance, Eire. Assignment.</p> <p>Where a lease of real estate contains a covenant by the lessee that he will, “at the expiration of said term, peaceably yield up unto the said lessor all and singular the premises and all the erections and additions made to or upon the same, in good tenantable repair in all respects, reasonable wearing and use thereof, and damage by fire and other casualties excepted,” and also a condition that, if the lessee fails “to pay the rent and taxes which on his part are to be paid under the terms of this lease or within ninety days after the same shall become due and payable, then and in either of the said cases, the lessor lawfully may immediately or at any time thereafter, and while such neglect or default continues, enter into and upon the said premises or any part thereof in the name of the whole and repossess the same as of their former estate,” the lessor has an insurable interest in the property and also in any erections or additions thereto, although the lease contains no provision for an abatement of the rent or for a termination of the lease in the event of the destruction of the buildings.</p> <p>And where such lease also contains a covenant by the lessee to "pay unto the lessor the said yearly rent . . . and also all the taxes, insurance and assessments whatsoever,” the lessee must effect such insurance as shall be reasonably adequate to cover and to protect the lessor’s reversionary interest, and, if he fails to do so, the lessor may place such insurance and in an action of contract for breach of the covenant recover from the lessee the amount of premiums necessarily paid by him in so doing.</p> <p>Such lessor’s insurable interest is not merely nominal.</p> <p>Such a covenant to pay for insurance was inserted for the benefit and indemnity of , the lessor and therefore is not performed by the placing of insurance, however adequate, solely in the name of the lessee.</p> <p>Whether such a covenant would be performed by the placing of adequate insurance payable in case of loss to the lessor and the lessee according to their respective interests in the property, was not decided.</p> <p>Whether the right of the lessor, under the lease above described, to insure his interest when the lessee refused to do so and to compel the lessee to pay the cost of the insurance, was a right under a covenant which in the absence of an agreement by or liability of the lessor to rebuild or repair in case of fire ran with the land, or was personal, was not derided in this case, where, although an assignee of the lessor placed the insurance after the assignment, no question as to his having succeeded to the rights of the lessor was raised.</p>

<p>Appeal from a decree of the Probate Court for the county of Middlesex allowing the last will and codicils of Abigail W. Howe, late of Cambridge.</p> <p>The will, after numerous specific bequests of articles of personal property and legacies of money, contained a residuary clause giving “the rest and residue of my estate” to Radcliffe College of Cambridge, Massachusetts, to be divided into two funds, one to be known as the Benjamin White Whitney fund and the other as the Augustus Anson Whitney fund, in memory of the two brothers of the testatrix, and the income to be applied in the form of scholarships or fellowships to meritorious students in any department of the college, at least one such fellowship to have sufficient income to permit the incumbent thereof to study abroad.</p> <p>The objections upon which the appeal was based are set out in the opinion. The appellee moved that the appeal be dismissed because the appellants set forth no reasons why an appeal should be allowed in law. The motion was heard by De Courcy, J., and was allowed. The appellants appealed.</p>

<p>Whit of entky dated November 2, 1915, to recover certain land in Saugus.</p> <p>• In the Land Court the case was tried before Davis, J., whose ruling and finding for the tenant are stated in the opinion. The demandant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Land Court, Jurisdiction, Incumbrances. Attachment. Constitutional Law.</p> <p>Under R. L. c. 128, (St. 1904, c. 448,) and acts in amendment thereof the Land Court upon a petition for registration of title has power to determine the actual state of the title to the land described in the petition but not the power to clear the land from the incumbrance of an existing special attachment.</p> <p>At the trial in the Land Court of a petition filed by a married woman for the registration of title to land standing in her name, alleging that the respondent in a pending action at law against the petitioner’s husband has attached specially all the right, title and interest of the petitioner’s husband in the land, it is right for the judge to exclude evidence offered by the petitioner to show that at the time of the special attachment the defendant in that action had no right, title or interest in the land described in the petition, and to refuse to make a decree based on such evidence registering the petitioner’s title free from the lien of the attachment.</p> <p>In the case above described it was said that it was not necessary to determine whether the petitioner had any other remedy for obtaining the removal of the incumbrance of which she complained nor to determine whether the guaranty of a certain remedy for all injuries or wrongs, which is contained in art. 11 of the Declaration of Eights, has been observed adequately by the existing statutes of the Commonwealth.</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>In the Superior Court the ease was heard by Fox, J. The evidence before the arbitration committee as reported by the Industrial Accident Board is described in the opinion. The board found upon this evidence that the employee received an injury in the course of and arising out of his employment and that this injury totally incapacitated him for work from September 17, 1915, to December 24, 1915. The board also affirmed a finding of the arbitration committee that the employee was insured under the act, ruling that when his employer, the Framingham Shoe Company, became a subscriber under the workmen’s compensation act it became a subscriber for all its employees.</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 a brief by the insurer.</p>

<p>Contract upon a promissory note for $500, dated December 1, 1905. Writ dated April 14, 1915.</p> <p>The answer set up the statute of limitations.</p> <p>The case was tried before Sisk, J. Evidence as to the defendant's financial condition was as follows: The defendant stated that he was born and always had lived in Gloucester, Massachusetts, and he had been in the garage business there, owning a garage, since-November, 1911. The garage business done by him consisted in part of repairing and of a very little storage. The garage property was subject to mortgages for a greater amount than “ it will bring.”' He had been interested “to a very small amount” in a small corporation engaged in the fish business, which he said had been “practically dissolved” in the year 1914, and he was not then interested in the fish business, and was hot doing business in the form of a corporation at the time of the trial. There was real estate which was assessed for $9,000 for taxation, the legal title to which was. in the defendant at the time of the trial and which had been owned by the defendant continuously since a time earlier than June 16, 1910. He bought this real estate for $8,000 in November, 1911, and gave a mortgage back for $8,000 and had paid no interest on it after the first year of the mortgage. He had no other real estate and no automobile “in the name of” anybody. He had borrowed no money anywhere during the last year before the trial, which was on November 4, 1915, and had not borrowed money in the year 1911. He did not have to have any money to go into the garage business. He had not borrowed any money at all during the last six years before the trial. He did his banking with a national bank in Gloucester, but never had had a balance as large as $500 to his credit. He was the only person who ever had been interested financially in the garage business run by him.</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Libel for divorce, filed on February 14, 1916.</p> <p>In the Superior Court the case was heard by McLaughlin, J. The findings of the judge are stated in the opinion. Under R. L. c. 152, § 17, the judge made a decree which is printed in a footnote on page 230, continuing the case on the docket and making provision for the separate maintenance of the wife and the custody and support of the minor children. The libellant contended that on the findings of the judge she was entitled to a decree of divorce as matter of law, and at her request the judge reported the case for determination by this court. If on the facts as reported by the judge he was required to enter a decree for divorce and could not continue the case on the docket with provision for custody and support, the decree was to be vacated and a decree nisi for cruel and abusive treatment was to be entered; otherwise, the decree was to be affirmed.</p> <p>R. L. c. 152, § 17, is as follows: “The court may, without entering a decree of divorce, cause the libel to be continued upon the docket from time to time, and during such continuance may make orders and decrees relative to a temporary separation of the parties, the separate maintenance of the wife and the custody and support of minor children. Such orders and decrees may be changed or annulled as the court may determine, and shall, while they are in force, supersede any order or decree of the Probate Court under the provisions of section thirty-three of chapter one hundred and fifty-three, and may suspend the right of said court to act under the provisions of said section.”</p>

<p>Contract for $68.75, for úse and occupation of premises owned by the plaintiffs. Writ in the Municipal Court of the City of Boston dated November 2, 1915.</p> <p>At the trial in the Municipal Court, the defendant presented requests for rulings applicable only to findings of fact from which an inference could be made that the plaintiffs had waived their right to the statutory notice of intention to quit. The judge found that there had been no such waiver, and refused the requests on the ground that they were not applicable to the facts found. He found for the plaintiff in the sum of $68.75, and at the request of the defendant reported the case to the Appellate Division, who dismissed the report. The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Contract, What constitutes.</p> <p>In an action on an alleged contract in writing it appeared that the defendant was the president and the treasurer of a brush company, that the plaintiff, acting as the agent of another corporation to which the brush company owed money, proposed to procure a mortgage on the real estate of the brush company and that he should be given a commission of ten shares of the preferred stock of the brush company, that the proposed mortgage was made and out of the money thus borrowed by the brush company its debt to the other corporation was paid. After the execution of the mortgage one S became the general manager of the brush company. The alleged contract on which the plaintiff sought to recover was in the form of a letter addressed to the plaintiff and signed by the defendant and by S, and was as follows: "For services rendered by you, Mr. S and myself agreed to issue to you 10 shares of the preferred stock of the above company. Circumstances as explained to you to-day have debarred us from doing this up to this time, and should it be impossible to do the same we will endeavor to satisfy you for those services in some other way.” The defendant testified that in all the transactions with the plaintiff he had acted as agent for the brush company and never had acted for himself individually. There was no allegation nor proof that the services rendered by the plaintiff in procuring the mortgage were undertaken and performed in reliance upon an express promise of the defendant that he individually would give to the plaintiff as a commission ten shares of the preferred capital stock of the brush company. Held, that a verdict must be ordered for the defendant.</p>

<p>Carrier, Of goods. Bill of Lading. Interstate Commerce. Contract, What constitutes, In writing. Evidence, Oí intent, Of customary act, Competency. Equity Jurisdiction, Mistake.</p> <p>Where a bill of lading for household goods shipped by rail, which were worth more than $10 a hundred pounds but much less than 81,000 a hundred pounds, contained a “release clause” stamped upon it and signed by the shipper, in which before the shipper signed it the agent of the carrier, who had intended to fill in the blank spaces left for the value of the goods with the figures “ 10.00” before the word “dollars,” in filling these blank spaces had left out the decimal point, so that the clause read, “For the purpose of enabling the carrier to apply the proper published rate, as explained in its classification and tariffs, I hereby declare that the value of the property herein described does not exceed 1000 dollars per cwt pounds, and that in case of loss or damage thereto, I will not assert claim against the carrier on a higher basis of value than 1000 dollars for each cwt pounds or .fraction thereof in weight of the property so lost' or damaged,” where each of the corresponding blank spaces in the release clause stamped upon the shipping order was filled in with an “ indecipherable scrawl,” although the carrier’s agent had intended to write the word “ten” before “dollars,” and where “there was no talk about the release clause” when the goods were received by the carrier and when the shipping order and the bill of lading were delivered, it was held that the uncommunicated intention of the carrier’s agent was immaterial, that both parties were bound by both writings and that the shipper could recover the full value of goods lost by the carrier.</p> <p>In an action for the loss of the goods mentioned above, which were shipped from one State to another, the settled doctrine was referred to, that a contract limiting the liability of a carrier for the loss of goods entrusted to him, as a part of the agreement as to the rate charged, is in effect an agreement respecting the value of the property shipped and is valid under the provisions for the regulation of rates contained in the statutes of the United States relating to interstate commerce.</p> <p>In the same case it was held that the findings of fact of the trial judge, made from an inspection of the original documents, that the figures “1000” were inserted by the defendant’s agent before the word “dollars” in the blanks in the bill of lading and that in the corresponding clause stamped on the shipping order the defendant’s agent, where he intended to write the word “ten” before “dollars,” in each case had “made an indecipherable scrawl,” were not subject to revision by this court, which has no jurisdiction to determine facts in actions at law.</p> <p>Accordingly when the original documents were presented to this court for inspection at the argument, the court refused to pass upon these questions of fact, but held that the findings of the trial judge were justified, and said that there appeared to be no reason to doubt their correctness.</p> <p>Where the parties to an instrument in writing in attempting to put their agreement in writing express essential terms of their supposed agreement by characters or symbols so illegible that the tribunal of fact before which the instrument is presented at a trial cannot determine the signification of the marking and finds it to be an “indecipherable scrawl,”, the writing is of no effect and no contract is made by it.</p> <p>In the case above described it was said that, if the release clause stamped on the bill of lading and that stamped on the shipping order should be construed together, the clause in the bill of lading in which the figures “1000” were inserted plainly in each of the blank spaces before the word “ dollars ” must control.</p> <p>The uncommunicated intent of one party to a contract when he is reducing to writing the supposed agreement of the parties, which supposed agreement subsequently is signed by both of them, is not admissible in his own favor in an action where the meaning and effect of the contract are in controversy between the parties.</p> <p>In the case above described it appeared that the release clause in question was stamped upon the bill of lading and the shipping order by a rubber stamp and that the defendant commonly used the stamp only when the value declared by the shipper was ten dollars per hundred weight. There was nothing to indicate that the shipper knew of this custom. Held, that the circumstance of the customary use of the stamp was of no consequence, and that, even if it had been shown that the custom was known to the shipper, it could not have affected the words that were written or omitted in the blank spaces.</p> <p>In the case above described the defendant contended that it could not be held liable for more than $10 per hundred pounds because the rate charged by the defendant and prepaid by the plaintiff was on that basis. Held, that, as the plaintiff’s only representation of value was that the goods did not exceed $1,000 per hundred pounds in value, which was much more than the amount that he sought to recover as their true value, he lost no rights if the defendant by mistake charged too low a rate.</p> <p>In the same case it was said that it was not necessary to consider what would have been the rights and liabilities of the parties if no declaration of value had been made by the shipper.</p> <p>In the same case it was said, that if there was a mutual mistake of fact in the wording of the bill of lading, which did not appear to have been the case, the defendant might have been granted relief in a suit in equity to reform the instrument in writing.</p>

<p>Appeal from a decree of the Probate Court allowing the will of John W. Eddy, late of Swansea.</p> <p>Issues were sent to the Superior Court for trial and were tried before Dubuque, J. The material evidence is described in the opinion. Answers were returned sustaining the will; and the appellants alleged exceptions.</p>

<p>Interpleader. Insurance, Life. Assignment.</p> <p>In an action by an administratrix against a life insurance company upon a number of policies issued by the defendant upon the life of the plaintiff’s intestate, if the defendant admits its liability to someone for the amounts named in the policies but certain persons other than the plaintiff have demanded payment of the insurance money to them respectively, it is proper for the defendant to file a petition of interpleader under R. L. c. 173, § 37, paying the money into court to await final judgment, stating the names and residences of the claimants and asking the court to order such claimants to be made defendants and thereupon to hear and determine the rights of the respective parties in and to the amount thus paid into court.</p> <p>A man, who was employed in a store kept by two sons of his deceased sister, took out policies of insurance upon his life and asked his two nephews by whom he was employed to take the policies, to pay the premiums upon them and to help him if it ever became necessary. The nephews took the policies, paid the premiums upon them up to the time of the death of the insured and helped the insured two or three times when he asked them to do so. While these policies were in force the insured agreed with the widow of his deceased brother that each of them would have his and her life insured for the benefit of the other. His sister-in-law procured a policy on her life, and he obtained two policies on his fife, one of which he delivered to his sister-in-law and the other to a niece, at the same time asking for the policy on his sister-in-law’s life, which was delivered to him. These facts were known to the insurance company and all the premiums on these policies were paid respectively by his sister-in-law and his niece. The insured lived with this sister-in-law and niece at intervals for about three years, and they retained possession of the policies until his death. While all of these policies were in force the insured married, and on his death his widow became the administratrix of his estate, and brought an action on the policies against the company that issued them. That company paid the insurance money into court and by a petition under R. L. c. 173, § 37, caused the holders of the policies to be made defendants as claimants. Held, that the facts stated above warranted a finding that there was the equivalent of an unqualified oral assignment of each of the policies accompanied by delivery, which was sufficient to pass the title to each of the policies to the assignee as against the personal representative of the insured, and that the respective claimants were entitled to judgment.</p> <p>In the same case it was held, that, as the insurance company made no objection to the assignments, the plaintiff could not complain that there had been no formal assignments or that the claimants had no interest in the life of the insured.</p> <p>In the same case it was pointed out that there was nothing to indicate that any of the policies was a wagering contract.</p> <p>In the same case it also was pointed out that an assignee of a life insurance policy need have no insurable interest in the life of the insured.</p> <p>It is settled law in this Commonwealth that, in the absence of any evidence indicating that the transaction was intended as a wagering contract, it is not necessary that the beneficiary or the assignee of a life insurance policy should have an insurable interest.</p>

Contract on a poor debtor’s recognizance alleged to have been entered into in the Police Court of Fitchburg by John F. Crowley, the debtor, and by the defendant as surety. Writ dated June 22, 1914.

<p>Bill in equity, filed in the Superior Court on May 26, 1914, and afterwards amended, by four of the five children of Jeremiah Reardon, deceased, against Ann C. Reardon, his widow, and Anastatia D. Reardon, his daughter, seeking to establish a constructive trust in certain real estate conveyed by Jeremiah to Ann previous to arid in contemplation of his death, and later conveyed by Ann to Anastatia.</p> <p>The suit previously was before this court upon a demurrer to the bill by the defendant Anastatia, when, upon a report by Morton, J., this court ordered in a decision reported in 219 Mass. 594 that, upon the filing of an amendment by the plaintiffs, the demurrer should be overruled.</p> <p>The amendment was filed and the suit was referred to a master, and afterwards was heard by Raymond, J., upon the master’s report without the introduction of further evidence. Material findings of the master and inferences drawn by the judge therefrom are described in the opinion. The master’s report was confirmed and a final decree was ordered dismissing the bill. The plaintiffs appealed.</p>

<p> Workmen’s Compensation Act. Elevator. </p> <p>If one, who is employed to operate an elevator by means of a rope, while he is transporting two fellow workmen leaves his post of duty at the rope and engages in a playful scuffle on the elevator with one of the other workmen, during which his.foot gets over the edge of the elevator floor and his heel is caught and injured, it cannot be found that his injury was one arising out of his employment within the meaning of the workmen’s compensation act.</p>

<p>Contract upon a contract in writing and under seal, described in the opinion, for the employment of the plaintiff by the defend-ant. Writ dated October 18, 1915.</p> <p>In the Superior Court the action was heard by Hall, J., without a jury. The material evidence is described in the opinion. At the close of the evidence at the request of the defendant the judge ruled as follows:</p> <p>3. “If the plaintiff procured the contract on which he relies in this case by fraud or material misrepresentations on his part, he is not entitled to recover.”</p> <p>6. “The plaintiff in the contract, for an alleged breach of which he seeks to recover, has impliedly represented himself as a capable manager of clothing stores, and the burden is on him to show such capacity on his part.”</p> <p>8. “The plaintiff was bound to observe and obey the shop and store rules of the defendant if he had knowledge of them, and if they were not waived by the defendant.”</p> <p>9. “If the plaintiff wilfully or knowingly failed to observe and obey the shop and store rules of the defendant, then the defendant was justified in severing his employment and terminating the contract with him.”</p> <p>10. “If the plaintiff was dishonest in his dealings and conduct with and to the defendant in relation to the subject matter of his employment, the defendant was justified in consequence of such dishonesty in terminating the contract.”</p> <p>12. “It is encumbent upon the plaintiff to show that he used due diligence to obtain employment elsewhere, and if he has failed to use such due diligence, then the defendant is not liable for such lack of due diligence.”</p> <p>13. “There is no evidence which will justify a finding for the plaintiff on that part of the contract under which he seeks to recover a percentage on gross sales.”</p> <p>14. “There is no evidence which will justify a recovery by the plaintiff on that part of the contract with reference to opening stores in other places than the city of Lynn.”</p> <p>15. “The plaintiff was bound by the terms of the contract on which he relies to render his services to the 1 entire satisfaction’ of the defendant, and if the defendant acting in good faith was not satisfied with the services of the plaintiff, it was not bound to keep him in its employ, but could terminate the contract.”</p> <p>The following rulings, asked for by the defendant, the judge refused to make:</p> <p>1. “Upon all the evidence, the plaintiff has not made out a case, and is not entitled to recover.”</p> <p>2. “The plaintiff has not shown substantial performance on his part of the conditions of the alleged contract, and is not entitled to recover.”</p> <p>4. “There is sufficient evidence of material misrepresentations in this case on the part of the plaintiff to preclude him from recovering.”</p> <p>5. “There is sufficient evidence of fraud in this case on the part of the plaintiff to preclude him from recovering.”</p> <p>7. “The plaintiff has failed to sustain his burden of showing that he was a capable manager of a clothing store and cannot recover.”</p> <p>11. “Upon all of the evidence in this case, the defendant was justified in terminating the alleged contract.”</p> <p>16. “If the defendant was not satisfied with the way the plaintiff’s services were rendered, it had a right to terminate its contract with the plaintiff.”</p> <p>The judge found for the plaintiff in the sum of $960; and the defendant alleged exceptions.</p>

<p>Tort against a street railway corporation under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, for causing the death on May 23, 1914, of the plaintiff's intestate under the circumstances described in the opinion. Writ dated July 14, 1914.</p> <p>In the Superior Court the case was tried before Dana, J. The material evidence is described in the opinion. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Conversion. Mortgage, Of personal property. Attachment. Evidence, Presumptions and burden of proof.</p> <p>If the owner of a mortgage, in which the property mortgaged is described as certain specifically described personal property in a store “and all other property whatever name or description, now located at” the store, forecloses the mortgage by taking possession of all the personal property therein, he gains no title to property placed in the store by the mortgagor after the date of the mortgage and cannot maintain an action of tort for conversion against a deputy sheriff who enters the store, and, on a writ against the person who was the proprietor of the store at the time of the foreclosure of the mortgage, attaches and takes away only property which was not specifically described in the mortgage and was not in the store at the time the mortgage was given.</p> <p>One who claims title to certain goods in a store by reason of a foreclosure of a mortgage cannot maintain an action of tort for the conversion of the goods against a deputy sheriff who after the foreclosure attached them on a writ against persons who were proprietors of the store at the time of the foreclosure if at the trial of the action the jury, on evidence warranting them in so finding, find that the goods were the property “ of the several defendants or any of them mentioned and described in the writ under which they were attached and removed” by the deputy sheriff.</p> <p>In an action of tort against a deputy sheriff for the conversion of certain goods which, while the plaintiff had them in his possession by reason of the foreclosure of a mortgage of personal property in a store, the defendant attached under a writ against the proprietors of the store, the burden is upon the plaintiff of proving that at the time of the attachment he had, besides possession of the goods, a complete property in them, either general or special.</p> <p>A deputy sheriff is justified, on a writ against six persons as the proprietors of a store, in attaching goods in the possession of one who claims title to them by reason of a foreclosure of a mortgage of the property in the store given by three of such six persons, if at the time of the attachment the goods were the property of the defendants in the writ “or three of them or any of them.”</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries suffered by the plaintiff on December 3, 1913, by reason of her tripping and falling over a ring projecting from a trap door in the sidewalk of Millbury Street in Worcester. Writ dated March 26, 1914.</p> <p>In the Superior Court the case was tried before Hamilton, J. The material evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant and reported the case for determination by this court, it being agreed that, if the ruling was wrong, judgment should be entered for the plaintiff in the sum of $800, and that otherwise judgment should be entered for the defendant.</p>

<p>Contract for the value of wearing apparel and work and material furnished by the plaintiffs, who were dressmakers, to the defendant’s daughter. Writ dated February 25, 1914.</p> <p>In the Superior Court the action was heard by Aiken, C. J., without a jury. The material evidence is described in the opinion. The Chief Justice found for the plaintiffs in the sum of $1,315.44 with interest from the date of the writ; and the defendant alleged exceptions.</p>

<p>Payment. Bills and Notes. Judgment, Entry of.</p> <p>Where the negotiable promissory note of a third person indorsed by a debtor is delivered by such debtor to his creditor as conditional payment only, to be credited as payment of the debt when such note is paid, the creditor, if he has not negotiated such note and it is overdue and unpaid, can surrender it and recover the amount of his debt.</p> <p>Where in an action on the debt in such a case it appears that the note has not been surrendered to the defendant and, upon a demand by the defendant for its surrender, the plaintiff is unable to produce the note because he has lost or mislaid it, it is right for the trial judge to order judgment for the plaintiff and to order that the entry of such judgment be stayed until the note is filed in court by the plaintiff.</p> <p>Whether, if the plaintiff in such a case should fail to file the note, he would be entitled to judgment on giving a sufficient bond, here was mentioned as a question that was not before the court.</p>

Tort for personal injuries sustained on May 19, 1906, when the plaintiff, who was an expressman and had been sent to receive certain ice to be delivered by the defendant from a freight car at the Union Freight car yard back of Commercial Wharf in Boston, was alleged to have been struck with an ice pick by reason of the negligence of a servant of the defendant in handling the ice. Writ dated March 15, 1907.

<p>Tort for damage done to a motor truck belonging to the plaintiff by its bemg run into on May 29, 1915, on Sea Street in Quincy by an electric street railway car of the defendant alleged to have been operated negligently by the defendant’s servants. Writ dated July 19, 1915.</p> <p>In the Superior Court the case was tried before Hall, J. There was evidence for the jury of due care on the part of the driver of the truck and of negligence on the part of the defendant’s motorman.</p> <p>The only question of law raised at the trial was in regard to the registration of the motor truck. The facts as to registration were agreed by the parties, and were in substance as follows:</p> <p>The plaintiff’s father formerly owjied a trucking business. Being involved in an accident for which he feared he would be sued, he transferred all his business to his daughter, the plaintiff, ■a girl twenty-one years of age. This transfer was made in January or February, 1915. The daughter at the time of the transfer gave to her father a power of attorney, and since that time the father has managed the business in the same manner as when it was his own.</p> <p>The plaintiff’s interest in the motor truck was derived from a contract of conditional sale dated April 29, 1915, under which the seller was William J. ICennard. The price was to be paid in ten equal payments, represented by notes, the first to be made on May 31, 1915, and the last on or before ten months from April 30, 1915. An indorsement on the contract showed that the first payment was made on April 29, 1915. The contract contained the following provision: “It is hereby expressly and mutually understood and agreed that the title to said automobile truck and equipment shall remain vested in the said Wm. J. ICennard unless and until the full amount of the purchase price of the said truck and equipment shall have been paid and this instrument shall have been cancelled and a bill of sale of said truck and equipment shall have been delivered as herein provided.”</p> <p>On May 25, 1915, the motor truck was registered by the highway commission in the plaintiff’s name as owner and the certificate of registration which was issued to the plaintiff bore that date. From that day the motor truck was used regularly in the trucking business until the happening of the accident four days later.</p> <p>On March 28, 1911, the Massachusetts highway commission passed the following vote, “Voted: That the Secretary be authorized to receive registration applications from persons who have leased motor vehicles, and to issue registration certificates to such lessees, provided that in each instance the applicant states that he is the lessee and also gives the name of the person or company actually owning the car.”</p> <p>The defendant contended at the trial that the motor truck was not legally registered, that it was a trespasser upon the highway and was in the same position as an unregistered motor vehicle.</p> <p>The jury returned a verdict for the plaintiff in the sum of $284.22, and the judge reported the case for determination by this court of the question whether the motor truck was registered legally, with a stipulation of the parties that, if the motor truck was not registered legally, judgment should be entered for the defendant.</p> <p>St. 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, begins as follows: “Application for the registration of motor vehicles may be made by the owner thereof, by mail or otherwise, to the Massachusetts highway commission or any agent thereof designated for that purpose, upon blanks prepared under its authority.”</p>

<p>Evidence, Photographs, Competency, Remoteness. Negligence, In maintaining unguarded steam pump in highway, Customary method as defence.</p> <p>At the trial of an action for personal injuries sustained by a boy eight years of age from being struck by a jet of hot water from a steam pump maintained in a public street by the defendant, who was constructing a sewer, the plaintiff introduced in evidence, without objection, certain photographs of the pump and its surroundings, which could be found to have been taken four days after the injury. A witness for the plaintiff testified that “the appearance of the pump and of the street in the photographs” was the same as when he saw them the day after the injury. Subject to the defendant’s exception, the presiding judge admitted the testimony of another witness that, from his observation of the pump four or five times a week for approximately four weeks preceding the injury and for two weeks after it, the representations in the photographs corresponded with his recollection. Held, that the evidence was clearly admissible, its weight and application being for the jury under proper instructions.</p> <p>In the same case it was held that the defendant’s night watchman, called by the plaintiff as a witness, who had a fireman’s license of the first class, properly was allowed to explain the location of the shut-off valve, which was not shown in the photographs, and also to state that the pump was a suction pump which would have to be primed with water “in order to get a lift,” this being competent to show the construction and method of operation of the pump.</p> <p>In the same case it also was held, that the presiding judge was right in excluding the question, asked the defendant by his counsel, “Now, was the way in which this pump was put in place and guarded by this fence the usual way in which pumps were installed and guarded in work of that kind?” and in ruling that “proof of the usual mode of installing and guarding similar pumps would not be a defence if the jury found that the defendant knew or in the exercise of due diligence should have known that, because of its location, the operation of the pump might endanger the safety of persons using the street.”</p>

<p>Negligence, Invited person, Of one controlling real estate. Evidence, Relevancy and materiality, Res gestae.</p> <p>The proprietor of a cotton storehouse, into which ran a spur track from a railroad which was used in the proprietor’s business, directed the railroad company to remove from the track freight cars which were inside the storehouse. On each side of the track was a platform on the level of the floor of the ordinary freight car. The distance between the roof of the car and the roof of the storehouse was about three feet. The car farthest in the' storehouse, provided with an automatic coupling, did not couple to the other cars when the switching crew backed against them, but was pushed still farther into the house and left there. The conductor of a switching engine then was directed by his superior to go behind the car to see what was on the track before he “made a hitch,” and, in doing so fell into a slot or opening which ran across the platforms and was used for the closing and opening of a fire door. In an action against the proprietor of the storehouse for injuries so received, it was held, that a finding was warranted that use of the platform by the conductor to pass behind the car was natural and probable under the circumstances, so that he might be found to have been an invitee of the defendant.</p> <p>At the trial of the action above described, there was evidence that the storehouse was dark, that the defendant was accustomed, when the door was open, to place a plank over the opening and that it was the duty of an employee of the defendant so to place the plank, but that there was no plank there when the plaintiff fell in. Held, that a finding was warranted that the plaintiff’s injuries were caused by negligence for which the defendant was responsible.</p> <p>On the evidence above described it also was held that the question of the due care of the plaintiff was for the jury.</p> <p>It was held, that at the trial of the action above described, evidence was admissible in explanation of the plaintiff’s conduct and as illustrative of his acts, tending to show that the plaintiff’s superior directed him to go behind the car to see what was on the track back of it before he “made a hitch.”</p>

<p>Notice. New Bedford. Municipal Corporations. Officer. Words, "File.”</p> <p>Under the provisions of St. 1909, c. 514, § 23, re-enacting St. 1904, c. 349, requiring a contractor or subcontractor upon a public work, in order that he may have the benefit of the security furnished under that statute, to file a sworn statement of his claim within sixty days after the completion of the work with the “officers or agents who” contracted “in behalf of the” municipality for doing of the public work, the persons with whom the statement must be filed are those who at the time of the filing hold the offices which were held by those who signed the contract on behalf of the municipality.</p> <p>Where the officers who signed such a contract on behalf of the city of New Bedford were the mayor and the chairman of the committee on city property of the council, such statements filed with persons who were, respectively, the mayor and the clerk of the committee on city property at the time of the filing are not sufficient.</p> <p>Nor are statements filed with the mayor and the city clerk and the city treasurer a compliance with the statute.</p> <p>Whether the requirement of the statute would have been satisfied if the statements had been given to the mayor and to the clerk of the committee on city property, and within the statutory period the chairman of the committee on city property had received the notice given to the clerk, was not decided.</p> <p>If a claimant causes such a statement to be delivered to the proper officers by a deputy sheriff, the requirements of the statute are satisfied, the deputy sheriff being an agent for the claimant and not an officer engaged in the service of civil process.</p> <p>The word “file” as used in the above statute is equivalent to “give notice to the officers,” or “serve notice upon the officers;” and the statutory requirement is satisfied when the statements are delivered to and received by such officers, irrespective of what afterwards is done with them by the officers.</p> <p>Whether such a statement by a subcontractor, filed eleven months after such subcontractor’s contract was completed, nine months after the contractor ceased work leaving the contract uncompleted, and one month after the contract was completed by the surety on the contractor’s bond, would comply with the requirement of the statute that the statement must be filed "within sixty days after the completion of the work,” was not decided.</p> <p>"Where such a contractor fails to complete the work and the surety company on the bond furnished by the contractor under the requirements of the statute completes it in his stead and receives payment from the city for what it did, the city may deduct from the contract price the amount so paid to the surety company, and is required to pay to claimants who have satisfied the requirements of the statute and to the contractor only the balance of the contract price due after such deduction.</p>

<p>Contract by the trustee in bankruptcy of Robert M. Robinson to recover the amount of payments alleged to have been preferences under § 60 a of the bankruptcy act of 1898 as amended. Writ dated February 10, 1914.</p> <p>In the Superior Court the case was tried before Raymond, J. Besides the evidence which is described in the opinion, it appeared that the bankrupt filed his petition and was adjudged a bankrupt on December 31, 1913, that his schedules showed liabilities amounting to $19,548.96 and assets amounting to $3,004.87, from which, exclusive of the book accounts, a receiver realized $750. The parties agreed that on October 1, 1913, the bankrupt's liabilities were $13,874.54 and his assets $5,998.98; that during October, November and December he purchased goods amounting to $11,183.62 and sold goods amounting to $12,569.38; that during that period he paid creditors other than the defendant $1,286.56, that in October and November he paid the defendant $2,031.59, and that all payments made for indebtedness were for indebtedness previous to October 1, 1913.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bailment. Sale. Limitations, Statute of. Mutual and Open Account. Agency, Scope of authority. Practice, Civil, Report, New trial.</p> <p>A grain dealer used sacks marked with his own name in shipping grain to one of his customers during a period of years, and in some portions of his account charged the sacks to the customer at a fixed price, crediting them to him when they were returned. In other portions of the account only the number of sacks was entered, no price being stated, and during a part of the period no entries as to the sacks were made. Held, that the above facts and reasonable inferences to be drawn therefrom proved a bailment and not a sale of the sacks, and that therefore such circumstances did not form the basis for a mutual and open account current between the parties, as to which, under R. L. c. 202, § 6, no cause of action accrues, such as will start the running of the period of limitation, until the time of the last item of the account.</p> <p>It seems, that, if there had been proved a sale of the sacks with an option to return them, under the provisions of St. 1908, c. 237, § 19, Rule 3, (1), the property would have passed to the customer and the sacks would have remained his until and unless he exerted his option to return them.</p> <p>Entries, made on the dealer’s books by an employee who was a teamster, crediting the customer with the price of boards furnished to another employee of the dealer and charging the dealer and the employee therewith, in the absence of evidence showing that the teamster had authority to make such an entry do not make necessary a finding that the price of the boards properly was credited to the customer, nor does such a charge form the basis for a finding of the existence of a mutual and open account current, especially where there is no evidence that the dealer ordered the boards of the customer, agreed to pay for them or ratified his teamster’s acts.</p> <p>A payment upon a general account consisting of many items, some of which are barred by the statute of limitations, renews only such items of the account as are not barred by the statute at the time of the payment.</p> <p>In order for such a payment to renew .the entire account, it must appear that it was made specifically to be applied to items of account at that time barred by the statute.</p> <p>An appeal from a disallowance by commissioners of a claim against an insolvent estate of a deceased person was heard by a judge and by him reported to this court upon an agreement that, if a ruling by the judge, that a certain payment made on the account removed the bar of the statute of limitations from the whole amount, was correct, judgment should be entered upon a finding based thereon, but that, if the ruling was wrong, judgment should be entered in a sum based upon an assumption that the claim should be allowed only for such items as were within six years before the death of the decedent. This court were of opinion that the payment removed the bar of the statute from all items within six years previous to the date of the payment and, there being no data in the record from which the amount of such items could be computed, ordered judgment for the creditor in the smaller sum mentioned in the agreement of the parties unless the judge of the trial court should decide that under the circumstances justice required a new trial and made an order to that effect.</p>

Petition, under R. L. c. 201, for additional salary alleged to be due to the petitioner as assistant district attorney for the Northern District by reason of the amendment of St. 1905, c. 157, § 1, Class C., by St. 1910, c. 369. The Commonwealth demurred. The demurrer was heard by Fox, J., and was sustained. The judge reported the case for determination by this court.

<p>Bill in equity, filed in the Probate Court for the county of Essex on December 3, 1915, and amended on January 10, 1916, by the administrator de bonis non with the will annexed of the estate of James H. Davis, late of North Andover, for instructions.</p> <p>The portion of the will to be interpreted is quoted in the opinion. The Probate Court made a decree “that under the terms of the said will of James H. Davis, his wife, Caroline E. Davis, took an absolute title in his personal estate.” Certain of the respondents appealed. The Episcopal City Mission, the Society of St. Margaret and the Massachusetts General Hospital were residuary legatees under the will and codicils of Caroline E. Davis.</p> <p>The appeal came on to be heard upon the pleadings and an agreed statement of facts before Braley, J., who reserved it for determination by the full court.</p> <p>I. W. Sargent, for the plaintiff, stated the case.</p>

<p>Contract, with a declaration in two counts, the first count being upon an account annexed for the use and occupation of a tenement hired of the plaintiff by the defendant for the months of November and December, 1912, and January, 1913, at $35 per month, with a credit of $25 received from a new tenant of part of the premises for January, 1913; and the second count being for a breach of the implied agreement of the defendant to use the premises in a tenantlike manner. Writ in the Municipal Court of the City of Boston dated March 29, 1913.</p> <p>The evidence at the trial in the Municipal Court is described in the opinion. 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 recover.</p> <p>“2. On all the evidence the plaintiff is entitled to recover on the first count of the declaration.</p> <p>“3. On all the evidence the plaintiff is entitled to recover on the second count of the declaration.</p> <p>“4. On all the evidence the plaintiff is entitled to recover the rent for the month of November, 1912.</p> <p>“5. If the notice of intention to terminate the defendant’s tenancy was not received by the plaintiff until October 2, 1912, it was not sufficient to terminate said tenancy.</p> <p>“6. If the notice of intention to terminate the defendant’s ■ tenancy was not received by the plaintiff until October 2, 1912, it was not sufficient to terminate said tenancy on October 31 or November 1, 1912.</p> <p>“7. On all the evidence there was no acceptance by the plaintiff of a surrender of the premises.</p> <p>“8. On all the evidence there was no waiver of the requirement or sufficiency of notice to terminate the defendant’s tenancy.</p> <p>“9. If the defendant had vacated and abandoned the premises and the plaintiff then retained the keys, that were delivered to her by the defendant, for the purpose of reletting the premises, that does not constitute an acceptance by the plaintiff of a surrender of the premises or a termination of the defendant’s tenancy.</p> <p>“10. If the defendant vacated and abandoned the premises without sufficient termination of his tenancy, the plaintiff is en-, titled to recover from him for rent until such time as the premises were actually relet or could have been by the exercise of reasonable diligence on her part, allowing him credit for any sum actually received for any part of the premises that were or could have been by reasonable diligence relet in the meantime.</p> <p>“11. The defendant by becoming a tenant at will of the plaintiff of the premises impliedly agreed with the plaintiff to exercise reasonable care while using the property to prevent damage thereto, and if he failed in this respect he is liable to the plaintiff for any damages to the property caused thereby; and this liability can be enforced in this action.,</p> <p>“ 12. The defendant by becoming a tenant at will of the plaintiff of the premises impliedly agreed with the plaintiff to exercise reasonable care while using the property to prevent damage thereto, unless such implied agreement was excluded by the operation of some express agreement, and if he failed in this respect he is liable to the plaintiff for any damages to the property caused thereby; and this liability can be enforced in this action.</p> <p>“13. If the defendant was a tenant of the plaintiff of the premises and, through his negligence occurring before he had vacated or while he was vacating the premises, the same were injured, he is liable in this action for the damages caused thereby. ®</p> <p>“14. If the defendant was a tenant of the plaintiff of the premises and vacated them after a stove in the house had been disconnected from the water pipes in such a way as to leave said pipes open and he did not have the water fully shut off or take other reasonable means to prevent the water from flowing out of said pipes and the water did flow out of said pipes and injure the house, the defendant was negligent and is responsible in this action for the damages caused thereby.</p> <p>“15. The statute of frauds as pleaded by the defendant is no defence to this action.”</p> <p>“ 18. If before the premises were vacated by the defendant the .stove was disconnected from the water pipes, the ends of which were left open so as to be likely to cause damage if the water was not properly and thoroughly shut off, and defendant without having any special knowledge or experience in this sort of work attempted to shut it off himself or left it to some other persons who didn’t have such knowledge or experience and the water was not properly shut off, this would be negligence on the part of the defendant and would make him responsible in this action for any •damages caused thereby.”</p> <p>The judge made the fourth, fifth, sixth, eighth, ninth, tenth, fourteenth and. fifteenth rulings, refused to make the first and second rulings as requested, but made them after adding the word "something” after the word “recover.”</p> <p>The judge also refused to make the seventh ruling as to the months of December et seq. and refused absolutely to make the third, eleventh, twelfth, thirteenth and eighteenth rulings.</p> <p>At the request of the defendant the judge made the following, rulings:</p> <p>“1. If the plaintiff, knowing that the written notice given to-her by the defendant was intended to terminate the tenancy at a. time stated therein, waived any objection to its informalities or by her words and conduct led the defendant reasonably and properly to understand that she waived such informalities, she-cannot now object that the notice was insufficient.</p> <p>“2. If the plaintiff, having on or about October 2, 1912, received from the defendant a written notice of his intention to terminate the tenancy as of a date specified therein, being on or about November 1, 19121, thereupon at once went to the defendant and told him that his notice was not sufficient and that she should ‘hold him to a full month’s notice’ and thereupon asked or received from the defendant permission to place ‘To Let’ signs on the property in question and immediately thereafter during the month of October and while the defendant still remained in actual occupation placed such signs upon the premises, in question, these are facts from which the court may find that the plaintiff by her words and conduct led the defendant' reasonably and properly to understand that she so far waived any informality in the aforesaid notice as to release the defendant from his tenancy at the expiration of the rental month of October.</p> <p>“3. Any acts which are equivalent to the expression of an intention on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises amounts to a surrender of the same by operation of law.</p> <p>“4. Certain of the acts which the plaintiff did during the month of November or the month of December or during both of those months in 1912, in the so called upper flat portion-of the demised premises now in question, including the making of repairs having no relation to the injuries alleged to have been caused by the escape of water or the defendant’s neglect, are such acts as will justify the court in finding that the plaintiff exercised during one or both of those months such dominion or occupation over the demised premises as are inconsistent with a right on her part to hold the defendant for use and occupation thereof during the months within which she did such acts.</p> <p>“5. A tenant at will is not liable to his landlord for injury to the demised premises due to the tenant’s mere negligence.</p> <p>“ 6. A tenant at will is not liable to his landlord for permissive waste as distinguished from voluntary waste.”</p> <p>The judge found in favor of the plaintiff in the sum of $35, and at the request of the plaintiff reported the case to the Appellate Division, who dismissed the report. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on November 18, 1915, alleging that the plaintiff is the owner of a parcel of land in Newton designated as Lot 18 on a certain plan, and praying that the defendants be enjoined from interfering with the plaintiff’s possession, use and enjoyment of such parcel of land and that the defendants Weed and Robinson be ordered to execute a good and sufficient deed of said Lot 18 to the plaintiff.</p> <p>In the Superior Court the case was heard by McLaughlin, J. He made a memorandum of findings including the facts that are stated in the opinion: The memorandum concluded as follows:</p> <p>“The plaintiff, as I find, entered upon the premises, cultivated the land, setting out trees and shrubs, and has ever since had the possession and enjoyment of it as an appurtenance to his own homestead. So far as appeared, he has never made any tender of the balance £of the purchase money], nor has he taken action of any kind to enforce any supposed rights, and to the demands of the executors that he accept the proffered deed, his answer through his counsel has constantly been a refusal to take it in the form in which it was tendered.</p> <p>“ In the latter part of the year 1915, the executors sold and conveyed the lot in question to the défendant Soderlund, who, as I find, had notice of the transactions between the plaintiff and the executors. When the plaintiff learned of this sale, he brought his bill.</p> <p>“I am satisfied that if the plaintiff had any rights, he slept upon them, and, thinking himself secure from interference, took no steps until November, 1915, when, hearing of the sale to Soderlund, he brought his bill three years after the date of the first sale.</p> <p>"I am of the opinion, first, that a good and sufficient deed was tendered the plaintiff. It should be noted, in this connection, that in the deed which was offered the lot was wrongly numbered, but no objection was made at the time on that score, and the parties seemed to agree at the hearing that the error would have been immediately rectified if the deed had been satisfactory in other respects:</p> <p>“Secondly, if the deed was not a good and sufficient one, the plaintiff did nothing for three years towards asserting his claim, but contributed by his own inaction to delaying the settlement of the estate, and was guilty of loches. For this reason, if for no other, his bill should be dismissed.”</p> <p>Later by order of the judge a final decree was entered dismissing the bill with costs, and the plaintiff appealed.</p>

<p>Contract, upon an oral contract entered into by the parties on July 8, 1914, which, as described in the bill of exceptions, “provided that the defendant agreed to sell to the plaintiffs, and they agreed to purchase of the defendant, 56,420 paving blocks at $42 per thousand, to be delivered at the quarry operated by A. Denault and Sons in the town of Dartmouth.” Writ dated July 13, 1914.</p> <p>At the opening of the trial in the Superior Court before Callahan, J., the defendant agreed that the contract was as above set forth but denied that he committed a breach thereof. The material evidence at the trial is described in the opinion. At the close of the evidence the defendant requested the following rulings besides those described in the opinion:</p> <p>“1. There is no evidence upon which the jury can find that Alfred Denault had authority from the defendant to refuse to deliver, in behalf of the defendant, the paving blocks.”</p> <p>“7. Upon all of the evidence and the law, the plaintiffs are not entitled to recover.”</p> <p>“9. The defendant Desautels, notwithstanding his contract with the plaintiffs, had the right to allow A. Denault and Sons to take paving blocks to which he had title.”</p> <p>“12. The plaintiffs had no right at any time to prevent Desautels from selling paving blocks to the city of New Bedford, although it might cause the plaintiffs to lose a valuable contract with the city.”</p> <p>The rulings were refused. There was a verdict for the plaintiffs in the sum of $833.24; and the defendant alleged exceptions.</p>

<p>Negligence, Motor vehicle, In use of highway. Practice, Civil, Conduct of trial: judge’s charge, remark of attorney, Exceptions.</p> <p>At the trial of an action against the owner of a motor car for causing the death of a boy less than five years of age, there was evidence warranting findings that the motor car was being driven by the defendant’s son acting as his agent, that, going north, it tinned to the west to pass a vehicle on the east side of the street, then turned to the east side of the street to pass an ice wagon that was standing near the middle of the street facing south, then turned to the west again and ran over the boy about eighteen feet back of the ice wagon, that no warning signal of the approach of the defendant’s car was given, that the speed of the car was not slackened although the driver knew that “there was danger around an ice wagon,” and that as he passed the ice wagon the driver turned his head over his left shoulder and spoke to someone whom he called Fred. Held, that a finding that the driver was negligent was warranted.</p> <p>An exception, by a defendant in an action of tort for causing death, to a statement of the presiding judge in his charge, “If the accident happened as claimed by the plaintiff,” the jury “might have a right to find for the plaintiff,” must be overruled when the parts of the charge preceding and following the remark are not reported in the bill of exceptions.</p> <p>An exception to a question put to a witness must be overruled where it does not appear in the bill of exceptions that the question was answered.</p> <p>An exception to a remark to the jury made by an attorney in examining a witness must be overruled where it appears that the judge in his charge instructed the jury to disregard the remark entirely.</p>

<p>Bill in equity, filed in the Superior Court on February 27, 1911, and afterwards amended, by the son of Benjamin W. Griffin, late of Rockport, who was the residuary legatee under his will, against Effie A. Davis, a sister of the testator’s widow, who was the plaintiff’s stepmother, and other persons who, the plaintiff alleged, fraudulently had procured that the testator’s widow just before her death should transfer to them much of. the personal estate of the testator which, with all the rest of his estate, by the terms of his will had been given to her “during her natural life for her support, comfort and enjoyment or for any other purpose for which she may deem it necessary to use it.”</p> <p>The suit was referred to a master. He found that the personal property of the testator amounted to $6,042.90; fhat the widow transferred $4,047.47 to her sister the defendant Davis, under the agreement described in the opinion, and $100 each to four other defendants as gifts. Other findings of the master material to the decision are reported in the opinion. A decree was ordered by Hardy, J., confirming the master’s report and dismissing the bill. The plaintiff appealed.</p>

<p>Insurance, Accident. Evidence, Presumptions and burden of proof.</p> <p>The beneficiary named in a policy of accident insurance, whereby the insurer agrees to pay to the beneficiary a certain sum “within sixty days from the receipt by” its board of directors “of proof satisfactory to said board of the death of” the insured “and that his death has been caused wholly and entirely by external, violent and accidental means, which . . . shall leave upon the body ... an external and visible mark,” filed with the defendant’s board of directors after the death of the insured an affidavit of herself that the insured’s death “was caused wholly and entirely by external, violent and accidental means, to wit, by a fall to the sidewalk, caused by tripping thereon,” an affidavit of a witness to the accident, to the effect that the insured “tripped on an irregularity on the sidewalk and was thrown, striking on his head,” an affidavit of identification of the insured’s body, an affidavit of the undertaker, which stated as- the cause of the death " Coronary Sclerosis, Chr. Arterio Sclerosis,” and the death certificate stating that the primary or secondary cause of the death was coronary sclerosis, chronic arterio sclerosis. The board of directors disallowed the claim on the ground that the proofs were not satisfactory to the board, in that they showed that the death was due to coronary sclerosis and chronic arterio sclerosis and not to external, violent and accidental means. In an action upon the policy, upon exceptions by the defendant after a verdict for the plaintiff, it was held that judgment should be ordered for the defendant because there was no evidence which would warrant a finding that the defendants’ board of directors as reasonable men acting reasonably ought to have decided upon the proofs submitted by the beneficiary that the death of the insured was caused wholly by external, violent and accidental means.</p>

<p>Petition, filed in the Land Court on December 30, 1913, for the registration of the title to certain land in Fall River.</p> <p>The petition was heard by Davis, J. Material facts are described in the opinion. The judge ordered that the title of the petitioners be registered subject to the rights of the public to pass and repass over so much of their land as was included within the limits “of the way now existing across the same.” The way referred to is that described in the opinion as substituted by one Whittaker for a public way which existed in 1893 across the locus and across land next adjoining, then owned by Whittaker.</p> <p>The petitioner alleged exceptions and in this court contended (1) that “There is no public way over any part of the locus;” and (2) that “There is no public way over that part of the locus over which it is claimed there has been travel since 1893.”</p>

<p>■Equity Pleading and Practice, Appeal, Costs. Deed, Completion of incomplete deed. Agency, Existence of relation. Frauds, Statute of. Clerics of Courts.</p> <p>A plaintiff in a suit in equity appealed from an informal interlocutory order sustaining a demurrer to the bill but did not appeal from a final decree dismissing the bill. This court assumed for the purposes of this case, without deciding, that the appeal from the order was an appeal from the final decree when entered and that the suit properly was before them, and, after consideration of the merits of the appeal, affirmed the decree.</p> <p>The owner of certain real estate, contemplating that an action for personal injuries was to be brought against him, conveyed his real estate to one who forthwith executed and acknowledged a deed of the same premises with the name of the grantee in blank and handed it to one who was the attorney for both parties with an oral instruction to write in the name of the original owner of the property as grantee when the action at law was determined and to record the deed.</p> <p>The original owner died after a verdict for the defendant in the action at law but before final judgment. His grantee conveyed the property to a stranger to the • title and died. In a suit in equity to compel the attorney to write into the incomplete deed the name of the original owner of the property and to record the deed, it was held that the instrument was without validity in the hands of the attorney and that the paroi direction to him as to filling in the name of the plaintiff was not sufficient to give him authority to do so. In the above suit it also was held that the conveyance by the grantee of the original owner was a distinct and unqualified repudiation of the oral trust agreement under which he received the deed of the land and of necessity made it impossible thereafter to confer upon the attorney power to fill the blank in the incomplete deed.</p> <p>It seems that by reason of the statute of frauds the grantee of the original owner could not have been compelled to reconvey the property or to confer upon the attorney a power under seal to execute the deed, but that the remedy for his refusal was by an action at law to recover the value of the property.</p> <p>The plaintiff in a suit in equity appealed from an order sustaining a demurrer but not from a final decree dismissing the bill. The defendant moved that the appeal be dismissed and that the clerk be ordered to issue forthwith an execution for the defendant’s costs. The defendant’s motion was denied and he appealed from an order to that effect and his appeal was in the same record with ' the plaintiff’s appeal from the decree sustaining the demurrer. This court, assuming without deciding that the appeal properly was before them, held that the proper procedure to be resorted to upon wrongful refusal of a clerk to issue an execution for costs was not that here followed.</p>

<p>Capital and Income. Trust, Apportionment of expense of improvements.</p> <p>Where it became the duty of trustees, holding a trust fund consisting of real and personal property, to remodel an old building that formed a part of the trust property, and in doing this work about a year was consumed during which time the tenants of the building necessarily were turned out and the amount of rent that such tenants would have paid had they remained in occupation amounted to $1,691, and where to pay for the improvements certain securities belonging-to the trust were sold and the dividends which otherwise would have been paid on such securities between the time of their sale and the time of the completion of the alterations amounted to $432, and where also the result of such remodel-. ling was to benefit by a change of investment both the life tenants and the remaindermen, it was held, that the trustees, in paying for the improvement out of the capital of the trust, in the exercise of their discretion properly might include as a part of the expense the loss of rents while the work was in progress, and that an item in their probate account charging to capital the sum of $1,691, representing such loss of rents, and crediting it to income should be allowed.</p>

<p>Workmen’s Compensation Act, Average weekly wages, Dependency. Statute, Amendment. Words, “Average weekly wages,” “Time so lost,” “Lost,” "Dependents.”</p> <p>Under St. 1911, c. 751, Part V, § 2, which provides that “‘Average weekly wages’ shall mean the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks’ time dining such period then the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted,” the average weekly wages of a workman employed in a granite quarry, who during the year preceding his injury did not work for about thirteen weeks by reason of inclement weather that prevented work in the quarry, are to be computed by dividing the amount of his pay for the year preceding the injury by the number of weeks that he actually worked.</p> <p>Where a dependent widow of a deceased employee, who has been awarded compensation under St. 1911, c. 751, Part II, § 6, dies before the expiration of the period for which the award was made and before any payment has been made to her, the administrator of her estate is entitled to receive the amount of the weekly payment awarded to her from the date of the injury until the time of her death.</p> <p>Where such a deceased employee left besides his widow a child under the age of eighteen years, who at the time of his death was a member of his family and one of his next of kin, under St. 1911, c. 751, Part II, § 7 (c), and under Part III, § 12, as amended by St. 1914, c. 708, § 11, there should be a review of the award by the Industrial Accident Board, who on such review have authority to order payments to be made for the benefit of such minor child for a period subsequent to the death of the widow.</p> <p>St. 1914, c. 708, § 11, which amended St. 1911, c. 751, Part III, § 12, so that it reads, "Any weekly payment under this act may be reviewed by the Industrial Accident Board, and on such review the board may, in accordance with the evidence and subject to the provisions of this act, issue any order which it deems advisable,” relates to procedure and is applicable to a weekly payment awarded for an injury that occurred before the enactment of such amendment.</p>

<p>Tax, On legacies and successions. Corporation, Disregarding corporate form in seeking substance of transaction. • Power.</p> <p>Under St. 1909, c. 490, Part IV, § 1, and before the enactment of St. 1912, c. 678, shares of corporations and voluntary associations organized under the laws of this Commonwealth and of national banks situated in this jurisdiction which were disposed of by the will of a non-resident were subject to a legacy and succession tax.</p> <p>The principle stated above applied to such shares held by trustees appointed and residing in this Commonwealth which were disposed of by the donee of a power of appointment created by will in this Commonwealth, who died as a resident of another State and exercised the power by his will proved in such other State.</p> <p>Citations by Braley, J., illustrating the doctrine of looking beyond a corporate form where this becomes necessary for the purpose of determining the true character of a transaction.</p> <p>Where trustees, who were appointed in this Commonwealth and resided here, held shares in Massachusetts corporations, the disposal of which by the will of a non-resident under St. 1909, c. 490, Part IV, § 1, before the enactment of St. 1912, c. 678, was subject to a legacy and succession tax, and before the death of such non-resident such trustees had transferred all such shares to a Maine corporation, organized and controlled by themselves, receiving in return contracts by which the Maine corporation agreed either to return to the trustees the identical shares or to furnish “an equal number of similar shares” on demand, and, until payment for or retransference of the shares, to pay or assign to the trustees the equivalent of all dividends either of income or capital paid or distributed upon such shares, and where it appeared that it was the desire and purpose of the trustees, in forming the Maine corporation and causing it to issue the contracts in exchange for the shares in the Massachusetts corporations, to bring about the result that persons to whom such contracts were issued should be subject to inheritance taxes upon such contracts only in the State of Maine and not in this Commonwealth, and it did not appear that there was any statute of the State of Maine imposing a tax on the disposition of such shares by will, it was held, that this court would look beyond the corporate form into the substance of the transaction by which in reality the shares in Massachusetts corporations continued to belong to the trustees after their formal transfer to the Maine corporation, and that accordingly the disposal of such shares by the exercise of a testamentary power by one who at the time of his death was a resident of the State of Maine was subject to a legacy and succession tax under St. 1909, c. 490, Part IV, § 1. Rttgg, C. J., dissenting.</p>

<p> Medford. Municipal Corporations. City Clerk. Quo Warranto. Attorney General. </p> <p>The city of Medford accepted St. 1901, c. 332, (now R. L. c. 26, § 15,) by the provisions of which a city clerk was to be elected or appointed every third year after 1902, namely, in 1905, 1908, 1911, 1914 and 1917, as required by the charter of that city, “to hold this office for three years from the day of his election or appointment.” The revised charter of Medford, contained in St. 1903, c. 345, provides in § 10 that “The board of aldermen shall elect, according to law, a city clerk, who shall hold office for the term of his election and until his successor is elected and qualified” and makes no change in the term of the election or the term of office. R. L. c. 26, § 15, contains the provision, “A person who is appointed to fill a vacancy in the office of city clerk shall hold the office until the end of the unexpired term of the person who last held the office.” A city clerk was elected by the board of aldermen of Medford to fill an unexpired term which ended in January, 1917. In January, 1916, the board of aldermen undertook by the form of an election to elect another person city clerk. Held, that the proceeding which purported to be such election of a new city clerk was void, there being no vacancy in the office, and that in spite of such proceeding the city clerk previously elected was entitled to hold his office for the remainder of the term then unexpired.</p> <p>An information by the Attorney General in the nature of a quo warranta under R. L. c. 192, § 12, is the appropriate process for ousting from an office one who holds it de facto but not de jure.</p>

Bill in equity, filed in the Superior Court on September 13, 1913, and afterwards amended, against Frank H. Palmer, Dwight N. Carpenter and the executor of the will of Frank V. Doolittle, alleging in substance that the plaintiff, a real estate agent, was employed by Carpenter and Doolittle to sell for them a farm at Gill in this Commonwealth owned by them as tenants in common, they representing to him that the farm “would cut seventy tons of hay per year;” that Palmer owned…

<p>Appeals from decrees of the Probate Court dismissing petitions by the son and the administratrix of the daughter of Stanhope C. Renwick to reopen the final accounts of the executors and trustees-under the will of Annie E. Renwick for the purpose of having disallowed a payment of $33,495.74 to one to whom Frederick W.. Renwick, a beneficiary under a trust created by the will of the testatrix, had bequeathed his property, and to have the respondents ordered to pay the fund to the petitioners as heirs and next of kin of Stanhope, the petitioners contending that by a proper construction of the will of Annie E. Renwick, which is described in the opinion, the interest of Frederick W. Renwick under the circumstances was not transmissible by his will, but passed to them.</p> <p>The appeals were consolidated and were heard by Rugg, C. J., who reported the facts stated in the opinion, among others, and reserved the cases for determination by the full court. .</p>

Bill in equity, filed in the Superior Court on November 11, 1913, and afterwards amended, seeking an accounting between the plaintiff and the defendant as partners under the circumstances described in the opinion.

<p>Municipal Corporations, Liability for torts, Public bathhouse. Negligence, Of municipality, Causing death.</p> <p>Review by Rtjgg, C. J., of the decisions of this court relating to and a statement of the principles of law governing liability of municipalities for tortious acts of themselves and their officers and agents.</p> <p>A municipal corporation which, under the authority conferred by R. L. c. 25, §§ 20, 21, maintains a public bathhouse and its approaches and makes no charge for their use, is not liable for conscious suffering and death resulting to one properly using the facilities offered from the giving way of the structure and its approaches by reason of the negligence of such municipal corporation or of its servants.</p> <p>The fact that, under the power conferred by the statute, the municipality might charge for the use of the bathhouse and thus might derive revenue or profit from the undertaking, does not under the circumstances above described make liable a municipality which makes no such charge.</p>

<p>Libel for divorce, filed in the Superior Court on April 15, 1907.</p> <p>On June 4, 1907, a decree nisi was entered, and it was ordered further that the libellee pay to the libellant as alimony the sum of $1,000 and $10 per week for the support of two children of the parties, “and further, the expense of necessary medical attendance to be rendered to said children by Dr. Burley.” Other orders were made relating to custody of the children by the mother and visits of the father with them.</p> <p>From the report of Ryder v. Perkins, 219 Mass. 525, it appears that the Dr. Burley mentioned in the decree above described died, and that thereafter the libellant employed one Dr. Johnson, on whose recommendation she consulted Dr. George H. Ryder, an “eye specialist,” who in 1911 performed for one of the children the services which were the basis of the action by Dr. Ryder against the libellee, which was begun on March 26, 1912. That action was heard in the Superior Court by a judge without a jury, who found for the plaintiff on June 12, 1913.</p> <p>In February, 1913, the libellant in the divorce proceedings filed a motion for a revision of the original decree as to visits of the libellee with the children and, because of the death of Dr. Burley, as to the employment of a physician and an increase in the amount of allowance for the children’s support. The motion was heard by Hardy, J., who on February 25, 1913, filed a memorandum for a new order as to the libellee’s visits with the children, containing, as to the medical services, the following:</p> <p>“There seems to have been such difficulty between the parties, with reference to the expenses of medical services, that I feel that the mother should be left to provide for medical services, in selecting such physicians as she sees fit, while the children are in her custody. I leave that selection to her, and I make an addition to the amount to be paid for the medical attendance upon such children which may be likely to be caused at the rate of $5 a month.</p> <p>“I therefore direct that the decree be revised in this way with reference to the amount allowed for support. That is, that the respondent, Harry K. Perkins, is to pay the sum of fifty-five dollars ($55) monthly, payable at the end of each and every month, or on the first Monday of each month, to the mother, to be expended by her in accordance with her own discretion and without the requirement that she shall account to the respondent for the sums that are thus to be expended. If it should appear hereafter that she was expending it improvidently, that is subject to the revision of the court. It seems to me it is inequitable to compel the mother to be subjected to the scrutiny of the respondent with reference to every slight expenditure that she may make in the care of such children.</p> <p>“A decree is to be prepared in accordance with my suggestions.”</p> <p>On December 30, 1913, exceptions of the defendant in Ryder v.' Perkins were allowed in the Superior Court. These exceptions were argued before this court on December 1, 1914, and were sustained in a decision rendered on December 30, 1914, and reported in 219 Mass. 525.</p> <p>In the divorce proceedings there had been left with the judge a draft decree based upon his suggestions in his memorandum above described, but omitting the suggestion that the libellant should select medical attendance upon the children, it reading, as to an allowance for the support and maintenance of the children, as follows:</p> <p>“That so much of the original decree relating to the support of the minor children and the necessary medical attention of the children be modified and revised as follows:</p> <p>“That the libellee shall pay to the libellant on the first day of each month the sum of fifty-five (55) dollars, which sum shall be used for the support, maintenance, and providing the necessary medical attention for said minor children.”</p> <p>On November 4, 1915, the judge made the following indorsement upon this draft of a decree:</p> <p>“This decree is to take effect as of February 26, 1913, with the modification that the further decree is to be made that the mother is to be allowed to make the selection of proper medical attendance for the care of said children, which modification is to take effect as of the last Monday of December, 1910.”</p> <p>The libellee appealed “from the modified decree dated November 4,1915, especially that part which provides that the 'modification is to take effect as of the last Monday of December, 1910.’ ”</p> <p>The case was submitted on a brief by the libellee.</p>

<p>Petition, filed on February 1, 1916, by the trustees of the Salisbury Beach Associates for a writ of mandamus addressed to the assessors of the town of Salisbury commanding them to apportion the tax assessed for the year 1913 upon the land of the petitioners, alleging that the land had been divided both by sale and mortgage after the tax of 1913 had been assessed, that the division had been recorded in the registry of deeds, that a portion of the tax assessed for the year 1913 on the land remained unpaid and that no part of the land ever had been advertised for sale for the payment of such tax, that the petitioners on November 8,1915, had filed with the assessors a written request for such apportionment and on December 18, 1915, had filed a like request as to a certain lot not included in a mortgage which covered the rest of the petitioners’ land.</p> <p>The case came on to be heard before Loving, J., who at the request of the parties reported it upon the pleadings and an agreed statement of facts “for the consideration and determination of the full court, such order to be entered as law and justice may require.”</p> <p>St. 1909, c. 490, Part I, § 88, is as follows: “If real estate is divided by sale, mortgage, upon a petition for partition or otherwise after a tax has been assessed thereon and such division has been duly recorded in the registry of deeds, the assessors at any time before said real estate has been sold for payment of taxes, upon the written request of the owner or mortgagee of any portion thereof, shall apportion said tax and the costs and interest accrued thereon upon the several parcels thereof, in proportion to the value of each, and only the portion of said tax, interest and costs so apportioned upon any such parcel shall continue to be a lien upon it; and the owners or mortgagees shall be liable only for the tax apportioned upon the parcel owned in whole or in part by them respectively.”</p> <p>Part II, § 36, of the same statute is as follows: “Taxes assessed upon land, including those assessed under the provisions of sections sixteen, seventeen and eighteen of Part I, shall with all incidental charges and fees be a lien thereon from the first day of May in the year of assessment. Such lien shall terminate at the expiration of two years from the first day of October in said year, if the estate has in the mean time been alienated; otherwise it shall continue until an alienation thereof. There shall be no lien for taxes re-assessed if the property is alienated before the re-assessment. Said taxes, if unpaid for fourteen days after demand therefor, may, with said charges and fees, be levied by sale of the real estate, if the lien thereon has not terminated prior to the giving of the notice of sale.”</p>

<p>Tort for personal injuries sustained on November 27, 1913, alleged to have been caused by the negligence of the defendant’s agent in operating a motor car owned and controlled by the defendant when the plaintiff was driving his own motor car along Pleasant Street in Framingham and was run into by the defendant’s car coming from Cross Street. Writ dated September 26, 1914.</p> <p>The answer contained a general denial and also alleged that the plaintiff was not in the exercise of due care and that his negligence contributed to the accident.</p> <p>In the Superior Court the case was tried before Bell, J. The evidence in regard to the happening of the accident is described in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. On all the evidence in the case the plaintiff, Porter L. Newton, is not entitled to recover.</p> <p>“2. On all the evidence in the case it does not appear that the person operating the defendant’s car at the time of the collision with the plaintiff’s car was the agent of the defendant or acting for him or in his behalf or that he was engaged in the plaintiff’s business.</p> <p>“3. On all the evidence in the case it does not appear that the defendant had possession or control of his car at the time of collision with the plaintiff’s automobile, or that it was in the possession or control of an agent of his or a person acting in his behalf or engaged in his business.</p> <p>“4. On all the evidence in the case it does not appear that the automobile of the defendant was being operated with his knowledge and consent at the time of the collision with the plaintiff’s automobile.”</p> <p>“1. If the jury find that the plaintiff at the time of collision was operating his motor vehicle at a rate of speed exceeding eight miles per hour and that the said collision occurred at the intersection of two streets, the plaintiff himself was violating St. 1910, c. 605, which is evidence of negligence on his part.</p> <p>“8. If the jury find that the plaintiff failed or omitted to blow his horn as he approached the intersection of Cross and Pleasant streets he was guilty of a breach of St. 1910, c. 605, requiring every person operating a motor vehicle where the operator’s view is obstructed, either upon approaching an intersecting way or a curve or corner in the way, to slow down and give a timely signal with his bell, horn or other device for signalling, and this is evidence of negligence on his part.”</p> <p>"11. If the jury find on all the evidence in the case that the plaintiff at the time of the collision between his car and the defendant’s car was violating the statute requiring operators of motor vehicles operating a motor vehicle on any road or way where the operator’s view is obstructed, as upon approaching an intersection of ways or a curve or a corner in a way, to slow down and give a timely signal with his bell, horn or other device for signalling, and if the jury also finds that the plaintiff was violating the statute requiring operators of motor vehicles operating the motor vehicle on any road or way where the operator’s view of the road traffic is obstructed, as upon approaching intersecting ways or a curve or a corner in a way, not to exceed eight miles an hour, then they shall find that the plaintiff was not himself in the exercise of due care and that he cannot recover in this case if his negligence in so violating St. 1910, c. 605, in any way caused or contributed to his injuries.</p> <p>"12. If the jury find on all the evidence in the case that the plaintiff at the time of the collision between his car and the defendant’s car was violating the statute requiring operators of motor vehicles operating a motor vehicle on any road or way where the operator’s view of the road traffic is obstructed, as upon approaching an intersection of ways, to slow down and give a timely signal with his bell, horn or other device for signalling, and that he was also violating the statute requiring operators of motor vehicles operating a motor vehicle on any road or way where the operator’s view of the road traffic is obstructed, as upon approaching an intersection of ways or a curve or a corner in a way, not to exceed eight miles an hour, then the plaintiff was not himself in the exercise of due care and the verdict should be for the defendant.”</p> <p>The judge refused to make any of these rulings and also rulings numbered 5 and 13, the exceptions to the refusal of which were waived.</p> <p>At 'the request of the plaintiff the judge made the rulings numbered 2, 3 and 5, which are quoted in the opinion, and also the following ruling:</p> <p>“4. If the jury find that the plaintiff, Porter L. Newton, had no knowledge of the intersecting Cross Street and could not have had such knowledge by the use of ordinary care, as he drove his car along Pleasant Street, till he saw the defendant’s car coming upon it, he cannot be charged with knowledge of such intersection and with the duty to slow down and blow his horn.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $5,000; and the defendant alleged exceptions.</p>

<p>Actionable Tort. Negligence, Explosion. Explosion.</p> <p>In an action by a domestic servant against the owner of a carboy for personal injuries caused by the explosion of the carboy when the plaintiff was pouring spring water from it into a pitcher, it appeared that the defendant carried on the business of bottling and selling spring water, that he did not make carboys but bought them, as he did this carboy, from a reputable dealer, and that he had lent this carboy to the plaintiff’s employer until its contents should be used. He testified that it was his custom to examine the carboys when washing and refilling them, that so far as he knew this carboy was not defective when delivered to the plaintiff’s employer and that he “never had anything like this happen before.” An expert witness testified that the explosion was due to the contraction of the glass caused by contact with water of somewhat higher temperature and that this was "the first time he had ever heard of anything happening just like this.” All the evidence tended to show that such an occurrence was theretofore unheard of. Held, that it could not be said that the defendant by the exercise of reasonable care would have foreseen that such an unprecedented occurrence was likely to happen, that there was no evidence of any failure of duty on his part toward the plaintiff and that a verdict must be ordered for the defendant.</p>

<p>Petition, filed on May 18, 1916, for a writ of mandamus addressed to the members of the State board of labor and industries commanding them to recognize the petitioner as a member of that board instead of one Samuel Ross, alleged to be holding that office unlawfully.</p> <p>The case was heard by De Courcy, J., who ruled as a matter of law, and without exercising his discretion, that the petitioner was not entitled to a writ of mandamus. The petitioner alleged exceptions.</p>

<p>Devise and Legacy, Construction. -Power.</p> <p>A testator in bis will made the following provisions: "I give, devise and bequeath all my estate, Real, Personal and mixed of which I shall die seized and possessed of to which I shall be entitled at the time of my desease to my beloved wife H, to have and to hold the same to her during her natural life, subject only to the condition, that my brother S . . . shall during his life recieve. a comfortable maintainance and support, both in sickness and health, out of my said estate, and . I hereby, give to my said wife, H, free power and authority, to use her own descretion as regard the amt nessary for my brother’s comfort, I also give my wife free power, and authority to sell and dispose of all and any part of my said estate, and if at any time she shall think it necessary for the comfortable maintainance or support of herself, or of my brother S.” The testator devised the residue of his estate after the death of his wife to the three sons of his brother S. Under the power quoted above the testator’s widow acting in good faith sold and conveyed certain real estate consisting of a house lot with an old house on it, which was unproductive and a source of expense and was in need of repairs that she could not make without selling an income producing mortgage. Held, that the power was exercised properly and that the deed of the widow gave a good title against the remaindermen.</p> <p>In the same case it was held that the power of the widow to sell and convey real estate was not limited to “the actual need of support and maintenance” on the part of herself or of S.</p> <p>In a deed of real estate made under a testamentary power it is not necessary that the terms of the power should be recited, if an intent to execute the power is shown by the instrument taken as a whole.</p>

<p>Charity. Tax, Upon real estate of charitable corporation, Exemption.</p> <p>A charitable corporation is not entitled to an exemption from taxation of its real estate under St. 1909, c. 490, Part I, § 5, cl. 3, unless such real estate both is owned by it and is occupied for the charitable purposes for which it was incorporated.</p> <p>Such occupation means something more than the occupation which results from simple ownership and possession, and its nature must be such as to contribute immediately to the promotion of the charity for which the corporation was ereated by physical participation in the forwarding of the corporation’s beneficent objects.</p> <p>If real estate owned by a charitable corporation, incorporated for the purpose of establishing a home for the aged and infirm Hebrews of the city of Boston and „ an orphanage for Hebrew children, ceases to be used for the purposes of a home or orphanage and is occupied solely by a caretaker, the mere facts, that occasionally the officers of the corporation meet at the home and that some furniture formerly used for the purposes of the home is left there, do not constitute actual occupancy of the real estate sufficient to exempt it from taxation under St. 1909, c. 490, Part I, § 5, cl. 3.</p>

Tort, originally against one Louis Greenberg for personal injuries alleged to have been caused by snow and ice negligently permitted to accumulate upon a sidewalk adjoining premises owned ■by the defendant as trustee under an instrument in writing. Writ dated May 18, 1912. An attachment of real estate was made upon the writ. The defendant appeared by an attorney and answered. On January 14,1913, the document described in the opinion was filed.

<p>Contract upon a policy of life insurance insuring the life of one Martha A. Thompson, the plaintiff’s testatrix. Upon the defendant’s answer, Ellena T. Palmeter, who was a daughter of the husband of the testatrix, Eben S. Thompson, who had died before the policy was issued, and also was administratrix with the will annexed of his goods and estate not already administered and residuary legatee under his will, became a claimant for the amount of the policy. Writ in the Municipal Court of the City of Boston dated December 2,' 1915.</p> <p>In the Municipal Court the action was tried upon an agreed statement of facts, described in the opinion. The judge ruled as follows:</p>

<p>Contract upon a policy of insurance of the plaintiff against loss by reason of theft of a motor car owned by him. Writ dated August 17, 1915.</p> <p>In the Superior Court the case was tried before. Keating, J. The material evidence is described in the opinion. The plaintiff asked the judge to instruct the jury as follows:</p> <p>“1. If the nature and extent of the damage done to the plaintiff’s automobile by theft was unknown to the plaintiff, and to the defendant, and incapable of ascertainment except by overhauling and taking apart the automobile, and the defendant’s adjuster, for the purpose of adjusting the amount to be paid to the plaintiff under his policy of insurance, agreed with the plaintiff that he should také said automobile to the service station of the Ford Automobile Company in Cambridge, and have the same overhauled and put in perfect repair and made as good as new, and the defendant would pay the plaintiff the bill of the Ford Automobile Company for such repairs together with the amount of such other damage as the plaintiff might have sustained, the plaintiff is entitled to recover under the second count of his declaration the amount of said bill of the Ford Automobile Com-pony, together with such other damage as he might have sustained by reason of the theft.</p> <p>“2. If Mr. Church, the defendant’s adjuster, for the purpose of adjusting the amount to be paid to the plaintiff on account of damage to his automobile from theft, agreed with the plaintiff that if the plaintiff would take his automobile to the service station of the Ford Automobile Company in Cambridge and have the same put in proper repair, the defendant would pay to the plaintiff the amount of the bill of the Ford Motor Company for such repairs, and the plaintiff thereafter took the machine to the service station of the Ford Automobile Company at Cambridge, and ordered it put in proper repair, and said Ford Automobile Company thereafter put said machine in proper repair, the plaintiff is entitled to recover the amount of the bill of the Ford Automobile Company for such repairs under the second count of the plaintiff’s declaration, plus whatever other damage the plaintiff might have suffered by reason of said theft.”</p> <p>The judge refused to grant the requests and instructed the jury in substance that the burden was on the plaintiff to show that the damage for which he sought recovery was caused by reason of the theft of the motor vehicle, that Church had no authority to make any agreement to pay for a bill for repairs not made in consequence of damage by theft, and that if Church agreed to pay the cost of having something more done to the machine than to put it in the condition in which it was at the time of the theft, the defendant would not be bound by such an agreement.</p> <p>The jury found for the plaintiff in the sum of $25; and the plaintiff alleged exceptions.</p>

<p>Contract upon a promissory note. Writ dated November 5, 1912.</p> <p>In the Superior Court, after a verdict for the plaintiff, the defendant, a non-resident, alleged exceptions to rulings of the trial judge upon the effect of a special appearance entered by him and upon the scope of a judgment to be entered on the verdict. The decision sustaining these exceptions is reported in 224 Mass. 14.</p> <p>After the rescript then issued, an order charging the trustees generally was vacated at the request of the plaintiff, and, after the trustees had been interrogated, they were charged, on motion of the plaintiff and by order of Morton, J., in the specified sum of $14,263.23, various rulings requested by the trustees relating to the subject matter described in the opinion having been refused by the judge. The trustees alleged exceptions and also filed a statement of an appeal.</p>

<p>Tort for alleged false and fraudulent representations, made at the times that the defendant purchased certain goods from the plaintiff, that the defendant intended to pay the plaintiff for the goods, whereby the plaintiff was induced to part, with them, whereas the defendant intended never to pay for the goods. Writ dated May 22,1915.</p> <p>In the Superior Court the case was tried before Hardy, J. The evidence is described in the opinion. Upon this evidence the judge ruled that the plaintiff was not entitled to go to the jury and ordered a verdict for the defendant. He thereupon reported the case for determination by this court with a stipulation of the parties that, if the ruling was wrong, judgment should be entered for the plaintiff in the sum of $207.82; otherwise, that judgment should be entered for the defendant upon the verdict.</p> <p>The case was submitted on a brief by the plaintiff.</p>

<p>Appeal from a decree of the Probate Court for the county of Essex appointing Dwight Hall, of Dover in the county of Strafford in the State of New Hampshire, trustee in this Commonwealth under the will of John C. Hastings, late of Somersworth in the county of Strafford in the State of New Hampshire, he already having been appointed trustee under that will by the Probate Court for the county of Strafford in the State of New Hampshire.</p> <p>The appeal was heard by De Courey, J., who made a final decree that “the appeal of E. Moody Boynton from the decree of the' Probate Court appointing said Dwight Hall, trustee, ... be dismissed and the case remanded to the Probate Court.” The respondent Boynton appealed.</p> <p>The case was submitted on briefs.</p>

<p>Insurance, Endowment. Contract, Construction, Performance and breach. Evidence, Competency, Extrinsic affecting writings. Words, “Leave.”</p> <p>A life insurance company issued to the superintendent of one of its branch offices as a prize for his work an endowment policy containing the following provision: “This policy shall become void whenever the insured named therein shall leave the service of the said Company except by cause of his death.” Held, that the provision quoted meant that the policy should become void if the insured left the service of the company voluntarily, and that the provision did not apply if the insured was discharged by the company arbitrarily and without justifiable cause.</p> <p>In an action brought by the insured upon the policy above described after the expiration of the twenty years at the end of which the insurance money became payable, it was agreed that the plaintiff was entitled to recover unless the policy had become void when the plaintiff ceased to be in the service of the defendant about two years and four months after the policy was issued to the plaintiff. There was evidence that at that time the plaintiff received from the defendant’s superintendent of agencies, who it was admitted had full authority to act for the defendant in the matter, the following letter: “This letter will be handed to you by Mr. G, whom we have thought it best to make superintendent at S in your stead. His superintendency will date from the presentation of the letter and you will place him in complete possession of the office and the company’s property, ... If you will forward your resignation we will accept it to take effect from the time of Mr. G’s arrival,” and that the next day the plaintiff wrote to the defendant the following letter: “My resignation is hereby tendered and I would ask that same be accepted. Same to take effect this day.” The presiding judge refused to rule that the plaintiff resigned voluntarily, and left to the jury the question, "Was the plaintiff discharged?” The jury answered “Yes.” Thereupon the judge ordered judgment for the plaintiff. Held, that the plaintiff was discharged by the defendant’s letter before the idle ceremony of the plaintiff’s formal resignation, and that the jury were warranted in finding that the plaintiff did not voluntarily “leave the service” of the defendant but was dismissed peremptorily.</p> <p>In the same case the defendant excepted to the admission of all the evidence except the defendant’s letter, and it was held that all the evidence admitted, including the correspondence of the parties, was competent as tending to show what took place between them, and that the conduct of the parties was material upon the issue whether the plaintiff voluntarily left the defendant’s service or was discharged.</p>

<p>Contract by. Herman Hindenlang, Walter Hindenlang and Arthur Hindenlang, the trustees of the Securities Real Estate Trust under a written declaration of trust, upon a contract in writing, "dated July 26, 1915, which was a Monday, to recover $368, being the purchase price of a parcel of land in Boston less $5 paid, and interest thereon. Writ in the Municipal Court of the City of Boston dated November 27, 1915.</p> <p>The evidence at the trial in the Municipal Court is described</p> <p>in the opinion, where also the findings and rulings of the judge are stated. The judge found for the defendant, and at the request of the plaintiffs reported the case to the Appellate Division. It was agreed by the parties that, if the refusal to give the ruling requested by the plaintiffs, which is stated in the opinion, was error, judgment was to be entered for the plaintiffs in the sum of $363 and interest from the date of the writ, and that, if the ruling on evidence constituted prejudicial error, a new trial should be had.</p> <p>The Appellate Division made an order dismissing the report, and the plaintiffs appealed.</p> <p>The case was submitted on briefs.</p>

<p>Contract on a promissory note for $200 made by the defendant Rubenstein to the order of himself and indorsed in blank by that defendant and by the defendant Rogers. Writ in the Municipal Court of the City of Boston dated November 2, 1915.</p> <p>The answer set up, among other defences, “that the plaintiff charged a rate of interest in violation of law and that the said transaction was illegal and void.”</p> <p>At the trial in the Municipal Court it appeared that interest was paid on the loan in excess of twelve per cent per annum and that at the time the loan was made the plaintiff was not licensed to conduct the business of making small loans. There was evidence that this was the only time the plaintiff ever lent a sum of money of an amount of $300 or less. At the close of the evidence the defendants asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence judgment should be rendered for the defendants.</p> <p>“2. Upon all the evidence the court must find that the amount paid for interest on said loan exceeded in the aggregate twelve per cent per annum.</p> <p>“3. Upon all the evidence the court must find that the plaintiff is an unlicensed person and that the loan was made in violation of St. 1912, c. 675, § 5, and is therefore void.”</p> <p>The judge refused to make any of these rulings, and found for the plaintiff. At the request of the defendants he reported the case to the Appellate Division.</p> <p>The Appellate Division made an order dismissing the report, and the defendants appealed.</p> <p>St. 1911, c. 727, § 3, as amended by St. 1912, c. 675, § 2, is as follows: “No person, partnership, corporation, or association within the Commonwealth, shall directly or indirectly engage in the business of making loans of three hundred dollars or less, if the amount to be paid on any such loan, for interest and expenses, exceeds in the aggregate an amount equivalent to twelve per cent per annum upon the sum loaned, without first obtaining from the supervisor of loan agencies a license to carry on said business in the city or town in which the business is to be transacted. When an application for a loan, or for an endorsement or guarantee, or for the purchase of a note is made by any person within this Commonwealth, and the money is advanced, or the endorsement or guarantee is made or furnished by any person, partnership, corporation, or association situated without the Commonwealth, the transaction shall be deemed a loan made within the Commonwealth, and such a loan and the parties making it shall be subject to the provisions of this act. The buying or endorsing of notes, or the furnishing of guarantee or security for compensation shall be considered to be engaging in the business of making small loans within the provisions of this act.”</p> <p>St. 1911, c. 727, § 17, as amended by St. 1912, c. 675, § 5, is as VOL. 225. 29 follows: "Whoever not being duly licensed as provided in this act, on his own account or on account of any other person, partnership, corporation or association not so licensed, engages in or carries on, directly or indirectly, either separately or in connection with or as a part of any other business, the business of making loans or buying notes or furnishing endorsements or guarantees, to which the provisions of this act apply, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment. And any loan made or note purchased, or endorsement or guarantee furnished by an unlicensed person, partnership, corporation or association in violation of this act shall be void.”</p>

<p>Municipal Court of the City of Boston, Report, Appellate Division. Conversion. Mortgage, Of personal property. Officer, Trustee Process.</p> <p>If the-Appellate Division of the Municipal Court of the City of Boston, acting under Rule 38 of that court, recommits to a trial judge a report made by him which was manifestly incomplete, it is proper for the judge, in order to make his report complete, to incorporate into a supplemental report a "memorandum of decision,” which is a memorandum of his findings of fact and of his decision, and to refer to his first report.</p> <p>If a deputy sheriff by virtue of a writ of summons and attachment makes an attachment of mortgaged personal property in the possession of the mortgagor, and, when the mortgagee makes demand upon him for the amount due on the mortgage, neither pays nor offers to pay the amount demanded nor returns the property, but retains possession thereof until after he serves upon the mortgagee a trustee writ wherein the mortgagor is the principal defendant and the mortgagee is alleged to be a trustee, and the writ of attachment never is entered in court, he is a trespasser ah initia as to the mortgagee and is liable to him for the full amount due upon the mortgage note and interest.</p> <p>The attempted attachment under the trustee writ above described constitutes no defence to an action by such mortgagee against the deputy sheriff, because at the time when the attempted attachment was made the goods were in the possession of the deputy sheriff under the first attachment and were not in the possession of the mortgagor; and therefore R. L. c. 167, § 74, which applies only, when the mortgaged goods are in the possession of the mortgagor, had no application.</p>

<p>Petition, filed in the Supreme Judicial Court on May 23, 1916, for a writ of certiorari to quash the proceedings of the Municipal Court of the City of Boston refusing to revoke a license for the sale of intoxicating liquors, described in the opinion, granted on April 16, 1915, by the licensing board of the city of Boston to Lawrence Kennedy and Mary A. Kennedy, doing business as Lawrence Kennedy and Company. The petitioner alleged that he owned land within twenty-five feet of the premises for which the license was granted.</p> <p>The petition was reserved by Carroll, J., for determination by the full court.</p> <p>R. L. c. 100, § 15, as amended by St. 1906, c. 287, provides as follows: “If before the expiration of the ten days following the publication of the notice [of application for a license], as required by the preceding section, the owner of any real estate within twenty-five feet of the premises described in an application for a license to be exercised by a common victualler to sell liquors to be drunk on the premises notifies the licensing board in writing that he objects to the granting of the license, no license to sell intoxicating liquors to be drunk on said premises shall be granted, unless the applicant therefor shall, for the two years next preceding the date of his application, have held a license for the sale of intoxicating liquors upon said premises. If, after such objection has been filed, a license is granted to an applicant who has not held for the two years next preceding the date of his application a license to sell intoxicating liquors as a common victualler upon said premises, the owner of any such real estate may apply for a hearing to a police, district or municipal court or trial justice within whose jurisdiction the premises are situated; and said court or trial justice, if it appears that due notice was given by the said owner of his objection to the granting of such license, shall revoke the license and send notice thereof to the licensing board. A city or town in which such license has been so revoked shall refund to said licensee or his legal representatives the money expended by him for said license and his court fees and costs. If, after such objection filed as aforesaid, a license shall be granted to an applicant, who, for the two years next preceding the date of his application, has held a license to sell intoxicating liquors as a common victualler upon said premises, the owner of any such real estate may apply for a hearing to a police, district, municipal court or trial justice within whose jurisdiction the licensed premises are situated, and if it shall appear to the satisfaction of such court or magistrate either that said objections are made in good faith or that the granting of said license and the business carried on thereunder will be a detriment to the reasonable use and enjoyment of such real estate of said objecting owner, said court or magistrate shall notify the licensing board thereof, and said license shall be inoperative and of no effect in said premises: provided, however, that said board may transfer the license to other premises. If the licensing board refuses to transfer the license, or if the licensee shall elect to surrender said license, the city or town in which the license has been exercised shall then refund to the licensee or his legal representatives that part of the license fee proportionate to the unexpired term of the license and his court fees and costs. Where at the time of the application no license for the sale of intoxicating liquors as a common victualler on the premises in question is in force, the licensing board shall in addition to the notice required by section fourteen of this chapter send written notice of such application, together with a copy of said section fourteen and of this section, to the owner or owners of the above mentioned real estate so far as they are disclosed by the records of the assessors.”</p>

<p>Contract by the executors of the will of James A. Laighton for the amount of deposits made with the defendant subject to check. Writ dated December 19, 1914.</p> <p>The defendant filed a declaration in set-off claiming SI,900 and interest upon four promissory notes.</p> <p>In the Superior Court the action was heard by Irwin, J., without a jury,' upon an agreed statement of facts. Besides the facts which are stated in the opinion it appeared that the deposits made by the plaintiffs as executors in the account in question were the proceeds of life insurance policies on the life of the insured. The judge ruled that the defendant had the right to set off the amount of the deposit existing at the date of the testator’s death against the notes, and had no right to set off the amounts subsequently added to the deposit by the executors, found for the plaintiffs in the sum of $1,907.32 and reported the case for determination by this court.</p>

<p>Contract or tort for damages resulting from the breaking, by reason of the falling of a safe while it was being lowered by a •subtenant of the defendant, of marble steps in a hallway of the ‘Tremont Theatre building in Boston, which was owned by the plaintiff and the first floor above the street floor of which was let to the defendant under a lease in writing. Writ in the Municipal Court of the City of Boston dated October 16, 1913.</p> <p>The material facts found by the judge at the trial in the Municipal Court are stated in the opinion. There was a finding for the plaintiff in the sum of $148.70, and at the request of the defendant the judge reported the case to the Appellate Division, who ordered that the finding for the plaintiff be vacated and that judgment be entered for the defendant. The plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Evidence, As to credibility of witness, Pleadings, Presumptions and burden of proof. Witness, Impeachment.</p> <p>Allegations in the declaration in an action of contract to recover compensation for services as to the amounts which formed the basis of the plaintiff’s computation of the sum due to him are presumed to have been prepared under the instructions of the plaintiff.</p> <p>Where, at the trial of an action of tort for personal injuries the plaintiff has testified that at the time of his injury his average weekly earnings as a salesman for a certain firm were from $24 to $25 a week, and that such employment ended about three months after his injury, the record of an action of contract brought by him against the members of that firm for compensation for his services, which showed that in his declaration in that action he had stated that his employment by the firm had begun three months before his injury and that all he had earned while in their employ was $256, is admissible as affecting his credibility as a witness.</p>

<p>Contract against the city of Medford on nine contracts in writing made with the plaintiff by the board of health of the defendant as described in the opinion. Writ dated April 2, 1914.</p> <p>In the Superior Court the case was heard by King, J., without a jury, upon an auditor’s report, which contained the facts that are stated in the opinion. The judge found the facts to be as stated by the auditor, and, at the request of the parties, reported the case for determination by this court. If, as matter of law, the plaintiff was entitled to recover, the judge found that it was entitled to recover the sum of $8,540.25 and interest at the rate of six per cent per annum from the date of the filing of the report, and judgment was to be entered for that amount or for such other amount as justice might require; otherwise, judgment was to be entered for the defendant.</p>

<p>Petition to allow the truth of exceptions, filed in this court on December 4,1915, by the Moneyweight Scale Company, a corporation organized under the laws of the State of Illinois and having a usual place of business in Boston, which was the plaintiff in an action brought by it against Clara E. St. Cyr of Peabody to recover the purchase price of a computing scale alleged to have been sold and delivered to the defendant under a contract of conditional sale, which case was tried in the Superior Court before Hamilton, J., where the jury returned a verdict for the defendant, and a bill of exceptions presented by the plaintiff was disallowed by the judge.</p> <p>A commissioner was appointed, who filed a report, and thereafter on November 10,1916, an order was made by this court that the case be recommitted to the commissioner “for the purpose of annexing the certificate of the trial judge disallowing the exceptions, and reporting the material facts as to the conduct of the petitioner from the time of filing until the disallowance of the exceptions.”</p> <p>On November 15, 1916, the commissioner filed a supplementary report, annexing thereto the judge’s certificate of disallowance.</p> <p>The material portions of the judge’s certificate of disallowance and of the statements of the commissioner contained in his supplementary report are quoted or described in the opinion.</p>

<p>Equity Pleading and, Practice, Demurrer, Amendment. Frauds, Statute of. Trust, Creation.</p> <p>Where an order sustaining a demurrer to a bill in equity gave leave to the plaintiff to amend his bill within a time named, and later, long after the expiration of the time named, upon the plaintiff filing a motion to amend his bill, the same judge denied the motion to amend on the ground that the proposed amendment did not “remove the valid grounds of demurrer already sustained,” and a decree was made dismissing the bill, it was said, that the proper practice would have been to allow the amendment and to let the defendant demur to the bill as amended; but, the parties having treated the case as if this had been done, this court considered the case on that basis.</p> <p>Under R. L. c. 147, § 1, providing that “No trust concerning land . . . shall be created or declared unless by an instrument in writing signed by the party or by the attorney of the party creating or declaring the trust,” an alleged oral agreement by a mortgagee of real estate, who after having entered to foreclose took from the mortgagor a deed of the mortgaged property subject to a former mortgage instead of resorting to a foreclosure sale, that he would take possession of the property, collect the rents and apply them to his mortgage, would pay the taxes and interest on the first mortgage and would pay off that mortgage in case of a threatened foreclosure and that, in case of an offer for the property acceptable to the grantor, he would sell the property and would pay to the grantor the balance of the proceeds after satisfying his own claim, cannot be enforced in equity.</p> <p>Where a second mortgagee of real estate, who has made an entry to foreclose, by agreement with the mortgagor instead of proceeding to a foreclosure sale takes from the mortgagor a deed of the mortgaged property subject to the first mortgage, a recital in the deed, to the effect that the conveyance shall not operate as a merger with the mortgage on the property held by the grantee, is in no way a declaration of a trust.</p> <p>A promise, made by the grantee under such a deed before its execution, in a letter written by his agent that, if such a deed is given by the mortgagor, “We will then see what can be done with the property and whatever we can net at private sales or otherwise we will credit to the account of the various mortgages and the accumulation of interest and expenses thereon,” is at most a contract and does not create a trust for the benefit of the grantor in the real estate conveyed.</p>

<p>Equity Jurisdiction, To redeem from equitable mortgage, To enforce resulting trust. Trust, Resulting.</p> <p>In a suit in equity against a husband and wife to establish a resulting trust for the benefit of the plaintiff in certain real estate purchased by the defendant wife at a sale on an execution against the plaintiff’s wife of property belonging equitably to the plaintiff, all of the evidence was not reported, but on findings of the master, warranted by the evidence reported, it appeared that the defendant husband, who in whatever he did in the transactions with the plaintiff represented his wife with her approval and subsequent ratification, agreed that he would attend the execution sale and buy the property for the plaintiff “and hold it in his name for the plaintiff,” that, after the property had been purchased in the name of the defendant wife, it was necessary in order to make a good title to procure a release from the plaintiff and that the plaintiff executed such a release to the defendant wife without receiving any consideration and understanding that “he was doing it in consequence of said agreement,” and there was evidence that the money paid by the defendant wife for the purchase of the prop-' erty at the execution sale was furnished by the plaintiff after having been borrowed by the plaintiff from the defendant husband for the express purpose of paying the purchase money at the execution sale. It appeared that the plaintiff did not know until long after the execution sale that the property had been bought by the defendant wife instead of by the defendant husband for the plaintiff’s benefit. Held, that the defendant wife took title to the real estate by way of equitable mortgage or in trust for the benefit of the plaintiff, and that the plaintiff was entitled to a conveyance of the property upon paying to such defendant what should appear to be due to her upon an accounting.</p>

<p>Probate Court, Appeal, Decree. Judgment. Evidence, Presumptions and burden of proof. Executor and Administrator.</p> <p>Where a single justice of this court has made a decree upon a petition under R. L. c. 162, § 13, allowing an appeal from a decree of the Probate Court to be entered and prosecuted, it must be assumed that the single justice found that the failure of the petitioner to claim an appeal from the decree was without default on his part and that justice requires a revision of the case.</p> <p>On a petition under B. L. c. 162, § 13, for leave to enter and prosecute an appeal from a decree of the Probate Court admitting to probate the will of a testator and appointing a certain creditor administrator with the will annexed of the estate of the testator, where it appeared that the names and addresses of the heirs at law and next of kin of the testator were not set out in the petition for the allowance of the will and the appointment of the administrator and that no notice was received by any of them nor did any of them know of the petition or of the decree until forty-four days after the decree was made, it was held, that a decree of a single justice of this court allowing the entry and prosecution of the appeal should be affirmed.</p> <p>In the case above described it was ordered that the respondent, who had been appointed administrator by the decree from which the appeal was allowed, should not be removed as administrator unless he was indemnified from liability on account of acts properly performed by him as administrator before the date of the filing of the petition for leave to enter the appeal.</p>

<p>Bill In equity, filed in the Superior Court on March 24, 1916, in which the plaintiff alleged that he had taken possession of a building in Brockton in accordance with the provisions of a conditional assignment of a lease thereof by the lessee, the defendant Bloomberg, by reason of Bloomberg’s default in payment of a debt to secure which the assignment was given, and that the defendants were threatening to prevent the subtenants of the building from paying rent to the plaintiff. The prayers were for injunctions restraining the defendants from interfering with the payment of rents to the plaintiff.</p> <p>In the Superior Court the suit was heard by Fox, J. The material facts found by him are stated in the opinion. Upon his order a final decree was entered establishing the plaintiff’s rights and granting the injunctions prayed for. The defendants appealed.</p>

<p>Bill in equity, filed in the Superior Court on April 29, 1915, for an accounting as to royalties alleged to be due to the plaintiff from the defendant under the provisions of an agreement between them dated January 27, 1903, and relating to employment of the plaintiff by the defendant and royalties to be paid to the plaintiff upon an invention called the “ Perfection Nail.”</p> <p>The suit was referred to a master.</p> <p>The master found that the contract in question was as follows: “1. The Morley Button Manufacturing Co. agrees to pay R. L. Ellery for services a salary of $30.00 a week for three years from Jan. 1, 1903, and a royalty of 4 cts. per M on such Perfection Nails as it shall make and sell during a term of three years from January 1,1903, guaranteeing that said royalty shall amount to $50.00 per month. The first payment of $50.00 to be made February 1st, and $50.00 the first of each month following during the period of three years above mentioned. Any royalty in excess of the $50.00 per month as provided for in the first part of this clause shall be paid quarterly as soon after receipt of R. L. Ellery’s report of nails shipped and checking of same as convenient.</p> <p>“2. At the end of three years from January 1, 1903, the.Morley Button Manufacturing Company, if it shall continue thereafter to employ said Ellery, shall pay said Ellery a royalty of at least $50.00 per month, if it shall. manufacture at a fair profit any article invented by R. L. Ellery. That is, if thereafter, the Perfection Nail should prove unsatisfactory or unprofitable and the Morley Button Company should, manufacture at a profit any other article invented by Mr. Ellery, the Morley Co. shall continue to pay said Ellery $50.00 a month. It is understood that if the Perfection Nail does prove satisfactory, the royalty of 4 cts. is to continue with a guaranteed royalty of $50.00 per month. If royalties on Perfection Nails continue the amount of $50.00 or more all other articles shall be free from royalty.</p> <p>“3. R. L. Ellery agrees to sever all connections with parties contemplating manufacturing Buttons, and agrees to impart no information in any way which might be detrimental to the Morley Button Manufacturing Co.</p> <p>“4. R. L. Ellery agrees during said period of three years thereafter while this contract continues to assign to the Morley Button Manufacturing Co. any invention he may make which may be manufactured by the Morley Button Manufacturing Co. to advantage.</p> <p>“5. R. L. Ellery agrees to remain with the Morley Button Manufacturing Co. on these terms for a period of at least three years. Should he at any time leave the employ of the Morley Button Manufacturing Co. this agreement is to cease without notice from either party. It is understood that this agreement shall stand after said three years, so long as the Morley Co. shall continue to employ R. L. Ellery and continue to manufacture articles invented by said Ellery.</p> <p>“It is further agreed that in the event of the death or disability of R. L. Ellery during the three years from January 1, 1903, the Morley Button Manufacturing Co. shall pay to his family the royalty on Nails as mentioned in Clause 1. Dated at Portsmouth, Jan. 27, 1903.”</p> <p>The master further found as follows:</p> <p>“About two months prior to January 1, 1906, the plaintiff and Merrill had a conversation, in which the former asked if the contract was to continue after the first of January and the latter replied that the defendant would not continue it, and the plaintiff then said that he ‘should have to look around for something else to do.’ He did not then ask Merrill to see a copy of the contract. On January 1, 1906, the plaintiff physically left the defendant’s employ and never since has done any work for the defendant or performed any duties similar to those which he had been performing for a long time prior thereto. He then began to take measures to form a new corporation ... for the purpose of competing with the defendant ...</p> <p>“As a result of . . . negotiations the parties, on February 19, 1906, executed the following instrument: ‘The undersigned, R. L. Ellery of Portsmouth, New Hampshire, having been for many years in the employ of the undersigned Morley Button Manufacturing Company, a Maine corporation, and being desirous of getting out into a different line of business, and the company desiring to retain Mr. Ellery as a consulting expert in its business, in consideration of Ten Thousand Dollars ($10,000) paid to-day by the company to Mr. Ellery, receipt of which he acknowledges, he (R. L. Ellery) agrees that for a term of fifteen years from date, he will engage to hold for the benefit of the Morley Button Manufacturing Company his knowledge and experience of the business of manufacturing and selling shoe buttons, gaiter buttons, tufting buttons (including both shank and clinch tufting buttons of all kinds), washers, collar buttons, upholstery nails and ring travelers, and for the purpose of securing to the company the full benefit of the service intended to be covered by this retainer, he agrees that he wrill not directly or indirectly engage in or aid others to engage in any of the above named businesses in a manner that will be in any way detrimental to or conflict with the interests of the Morley Button Manufacturing Company. It is understood that future services or consultations involving any appreciable amount of work which Mr. Ellery may actually perform for the company under this agreement shall be paid for by the company in addition to the sum of Ten Thousand Dollars ($10,000) already paid, at a rate to be satisfactory to Mr. Ellery, but to be named by him when possible in advance of his commencing to perform the special service, and it is also agreed that the company shall not have the right to demand that Mr. Ellery leave or neglect any outside business in which he may at the time be engaged for the purpose of consultations or performing service for the Company as provided in this agreement, but that such service may be rendered at such times as Mr. Ellery can arrange, so as not to conflict with his outside interests.’</p> <p>“The sum of ten thousand dollars ($10,000) was paid by the defendant to the plaintiff on the date of the contract above set out; and such payment was intended and received as a retainer, and not in lieu of royalties, or in settlement of all claims. The various businesses which are mentioned in the above contract were all businesses in which the defendant was engaged at the time.”</p> <p>Other material facts found by the master are stated in the opinion. Exceptions by the plaintiff to the master’s report were heard by Fox, J., by whose order an interlocutory decree overruling the exceptions and confirming the report and a final decree dismissing the bill with costs were entered. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on April 22, 1916.</p> <p>The allegations in the bill were in substance that the plaintiffs were the executors of and trustees under the will of Eliphalet F. Andrews, late of Washington in the District of Columbia, that the defendant on July 22, 1915, by a letter addressed to the plaintiffs’ testate, stated to them as follows:</p> <p>“I am in possession of facts and information which lead me to believe that I can collect for you and your account a very large sum of money from a perfectly solvent party.</p> <p>“No attempt on your part has ever been made to collect the same, due undoubtedly to ignorance of its existence, and yet the justness of the claim which amounts to between $30,000 and $60,000 cannot be impeached.</p> <p>“In view of my right-of discovery and the fact that the money will come to you through me and my efforts only, I deem a compensation of 50% of amount collected and received a just and fair one.</p> <p>“There will be no charge or expense of any kind to you until the money is actually collected and paid.</p> <p>“If these conditions meet your views, I shall be glad to act for you in the matter.”</p> <p>There were further allegations that the plaintiffs were ignorant of any circumstances relating to the claim which was the subject matter of the letter, that they had corresponded with the defendant and that he had refused to disclose any information whatever regarding the claim except upon the terms stated in his letter.</p> <p>The plaintiffs further alleged that they intended to prosecute the claim, if it should be found to be just and to afford a reasonable probability of success, and were willing and offered to pay to the defendant such reasonable compensation as the court might deem and decree to be just and proper for the disclosure of the following facts:</p> <p>“ (a) The name or names of the party or parties against whom said claim exists, together with their present place or places of residence or business.</p> <p>“ (b) The nature of said claim, its origin, and all facts in connection therewith.</p> <p>“ (c) Such evidence as he may possess or may have access to in substantiation of said claim, including the production of all documents relating thereto, and the name or names and addresses of all witnesses to the facts thereof.”</p> <p>The prayers of the bill were for a decree directing the defendant to disclose such facts.</p> <p>The defendant demurred to the bill. The demurrer was heard by Lawton, J., by whose order an interlocutory decree sustaining the demurrer was entered. Later there was entered a final decree dismissing the bill with costs. The plaintiffs appealed.</p> <p>The case was submitted on briefs.</p>

<p>Corporation, Officers and agents. Equity Jurisdiction, To compel accounting for illegal expenditure of funds of corporation. Contract, Implied, Of indemnity.</p> <p>A corporation is not bound by the action of a majority of its board of directors, intentionally kept secret by them from the minority of the board, in arranging for the purchase by a bank of shares of stock in the corporation necessary to assure their control of it and a continuance of their policies in the face of threatened opposition, for a guaranty of the bank against loss by the treasurer of the corporation, one of the majority of the board, and for the holding of such shares in the name of a friend of the treasurer and an employee of the bank who indorsed them in blank and placed them in the treasurer’s possession and gave the treasurer proxies for voting upon them until an opportune time for the corporation openly to acquire and pay for the stock, although such conduct of the majority of the board was beneficial to the corporation.</p> <p>Nor do the circumstances above described give rise to an implied promise on the: part of the corporation to save the treasurer harmless upon his guaranty given to the bank.</p> <p>And if a later board of directors of the corporation, a majority of whom are the same persons who carried out the plan above described but a minority of whom are in ignorance of the foregoing facts, by a vote empower the same treasurer to purchase the stock “now held by” the employee of the bank without naming a price, such vote cannot be construed as a ratification of the former action of the > majority of the board nor as giving to the treasurer authority to pay for such stock a price, far in excess of the market value of the stock, which equals the price which was paid by the bank and interest on the sum advanced by the bank.</p> <p>Under the circumstances above described, the corporation may maintain a suit in equity to compel the treasurer to account to it for the excessive price thus paid for the stock and to repay to it so much of the amount so paid as was in excess of the fair market value of the stock at the time of the purchase which was legally authorized.</p>

Summary process for the possession of land. Writ in the Third District Court of Eastern Middlesex dated September 25, 1915. On appeal to the Superior Court the case was tried before Hitchcock, J. The evidence tended to show that the property in question was owned by the plaintiff, that it formerly had been occupied by a tenant under a lease in writing and that, after the tenant’s bankruptcy, it had been occupied by various persons and finally by the defendant.

<p>Contract, Performance and breach, What constitutes. Damages, For breach of contract. Practice, Civil, Set-off of judgments.</p> <p>In an action for the price of goods sold and delivered, where the defendant admits the receipt of the goods and upon the evidence is liable as matter of law to pay the contract price, the trial judge must refuse to make a ruling at the defendant’s request that the defendant is liable only for the amount for which he sold the.goods, which it was admitted was the contract price of purchase, less a fair charge against the plaintiff “for whose account” the defendant sold the goods, as contended by the defendant contrary to the evidence.</p> <p>When an offer by letter to sell certain goods for a price named has been answered by a letter containing a clear and unconditional acceptance of the offer, a contract of sale has been made and its existence as a binding agreement cannot be affected by a subsequent letter of the seller, stating that unless he shall, have received an immediate telegraphic answer of acceptance to a certain telegram sent by him he shall “consider the affair as though not transacted.”</p> <p>In an action for a breach of contract by the defendant in failing to deliver goods which he agreed to sell to the plaintiff at a certain price delivered at a certain time and place, the plaintiff, on proving his case as alleged, is entitled to recover the difference between the contract price and the amount that the goods would have been worth at the time and place specified in the contract of sale.</p> <p>Where cross actions of contract have been tried together, in the first of which the plaintiff is entitled to recover a certain sum as the price of cheeses sold and delivered, and in the second of which the plaintiff in the first action is held liable in damages to the defendants in the first action for his failure to deliver other cheeses which he also had agreed to sell to the defendants in the first action, if it is necessary to protect the rights of such defendants as the plaintiffs in the second action, the trial judge may make an order under R. L. c. 170, § 4, continuing the first case until a final disposition has been made of the second case in order that one judgment may be set off against the other.</p>

<p>Tort by a longshoreman against the Boston and Yarmouth Steamship Company, a corporation established under the laws of the Province of Quebec and having a usual place of business in Boston, for personal injuries sustained by the plaintiff on March 16, 1914, when in the employ of the defendant and at work in unloading lumber from the hold of a vessel of the defendant called the Prince George. Writ dated June 25, 1914.</p> <p>• In the Superior Court the case was tried before Chase, J. It appeared that the defendant was not a subscriber under the workmen’s compensation act. The evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings, besides others which were made by the judge:</p> <p>“1. On all the evidence the plaintiff cannot recover.”</p> <p>"4. There is no evidence of any conditions as to the way the ■ lamps acted prior to the accident which would have put the defendant on any notice that there was any defect in the lamps or equipment.</p> <p>"5. There is no evidence that the lights went out’owing to a defect in the apparatus which the defendant might have discovered and remedied by the exercise of reasonable care.”</p> <p>“9. If the darkness caused the injury complained of, it was a transitory risk for which the defendant is not hable.”</p> <p>The judge refused to make any of the four rulings quoted above and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $500. Thereupon the judge, being of opinion that the right of the plaintiff to recover should be determined by this court, reported the case for such determination. If on the evidence the plaintiff was entitled to have his case submitted to the jury, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendant.</p>

<p>Negligence, Employer’s liability, In maintaining freight elevator.</p> <p>A corporation operating a mill and maintaining therein for the use of its employees a freight elevator consisting of a square open platform without any guard round its edges, the condition of which is plain to be seen, is not bound to instruct a boy fifteen years of age, who has been in its employ from four to six days, that when being transported on the elevator he must not allow his feet to protrude over the edge of it, that being a danger obvious to such a boy.</p> <p>In an action by an employee in a mill against his employer for personal injuries caused by the plaintiff’s heel projecting beyond the edge of the square open platform of a freight elevator maintained by the defendant, where the plaintiff contends that the operator in charge of the elevator was incompetent, but the only fact relied on to show this is the conduct of the operator at the time that the plaintiff was injured, this affords the plaintiff no ground for recovery, because, even if the operator of the elevator was negligent at that time, this does not show negligence on the part of the defendant in retaining him in its employ up to the time of the accident.</p> <p>In the action above described it also was held that the presiding judge committed no error in excluding evidence offered by the plaintiff to show that the construction of the elevator well was defective and dangerous and to show that by the placing of a sufficient guard the injury could have been prevented, because the construction of the elevator well and the absence of a guard were obvious.</p>

<p>Evidence, Opinion: experts, Of mental condition, Remoteness, Hospital records. Fraud. Undue Influence. Equity Pleading and Practice, New trial.</p> <p>In a suit in equity by an administrator of the estate of a woman to set aside certain instruments executed by her shortly before her death at the age of seventy-two years on the grounds of mental weakness of the intestate and of fraud and undue influence exercised upon her, a sister of the intestate was asked as a witness, “Did you observe any fact . . . about your sister’s conversation, or notice anything that indicated a failing of her mind or that her mind was weakened or affected?” Held, that the question was a proper one and not to be excluded as calling for the opinion of the witness.</p> <p>In the suit above described it was held, that the discretion of the trial judge was exercised properly in admitting evidence in regard to the mental condition of the plaintiff’s intestate at a time eighteen years before the execution of the instruments sought to be set aside.</p> <p>Under St. 1912, c. 442, § 2, the custodian of the records of the Danvers State Hospital, when testifying as a witness at a trial, properly may be permitted to read from such records portions showing the treatment and medical history of a patient who was admitted to that hospital in the year 1896 and was discharged in the same year in an unimproved condition.</p> <p>A witness qualified as an expert on insanity, who is not an expert on handwriting, properly may be allowed to testify, upon the issue of the mental condition of a certain woman, that specimens of her handwriting examined by him indicate a person advanced in years, an arterio sclerotic or senile person, "by reason of the palsied writing and tremor which is characteristic of that period in life.”</p> <p>The denial of a motion for a new trial upon issues framed for and submitted to a jury in a suit in equity, asked for on the grounds that the answers of the jury are against the evidence and against the weight of the evidence, that the answers show that the jury did not fully understand the issues, and because of certain evidence alleged to have been newly discovered, is a matter entirely within the discretion of the presiding judge.</p>

<p>Guaranty. Contract, What constitutes. Assignment. Corporation, Proof of corporate act. Evidence, Presumptions and burden of proof. Maxims, All things are presumed to have been done rightly.</p> <p>In an action by a dealer in electric motors on a guaranty in writing signed by the defendant guaranteeing the payment for certain motors if sold by the plaintiff to a certain proposed customer, where it appears that the plaintiff told the defendant that the motors would be shipped to the proposed customer when the account was guaranteed, and thereupon the defendant wrote to the plaintiff telling him to send the motors at once and guaranteeing the payment for them, and the next day the plaintiff shipped the motors to the customer, who failed to pay for them, it is not necessary for the plaintiff to show that he accepted the guaranty before shipping the motors, the shipment itself being an acceptance of the defendant’s offer.</p> <p>In an action of contract brought by the alleged assignee of a certain corporation under an instrument in writing purporting to be an assignment from that corporation, signed by its president and stamped with a corporate seal bearing the name of the company ending with the word “ Incorporated,” where the plaintiff has testified that he was the treasurer and a director of the corporation and that the signature was that of its president, and where the defendant’s letters put in evidence are addressed to the alleged corporation by its corporate name ending with the abbreviation “Inc.,” this is evidence on which it can be found, in the absence of any evidence to the contrary, that the plaintiff’s assignor was a corporation and that the assignment was its act.</p>

<p>If the grantee in a completed deed of land, after the deed is delivered to him but before it is recorded, causes his name to be erased as grantee and that of his wife to be substituted therefor and thereafter the deed is recorded, his estate is not divested but remains his property and is not transferred to his wife and, although the record title stands in her name, the Land Court properly may grant a petition by him for registration of the title in his name.</p> <p>Where, at the hearing of a petition in the Land Court for the registration of the title to certain land, it appears that the land was purchased in part with money which had been given to the petitioner by his wife from the proceeds of the sale of property that had stood in her name and that had been purchased with money which had been given to the wife by the husband, it is proper for the court to rule that there was no resulting trust in the land for the wife’s benefit. A finding of a judge of the Land Court that he disbelieved certain evidence cannot be reviewed upon a bill of exceptions.</p>

<p>Assault and Battery. Evidence, Presumptions and burden of proof.</p> <p>Where the defendant in An action of tort for assault and battery attempts to justify his acts as done in self-defence against an attack by the plaintiff and others, it is proper for the judge to instruct the jury that the burden is upon the defendant “to prove the right to use force, that is, to prove to you that he was set upon by a crowd and that he did this in self-defence.”</p>

<p>Bill in equity, filed in the Supreme Judicial Court on September 23,1910, by the administratrix of the estate of Jane Miller, late of Chicago in the State of Illinois, against the executors of the will of Thomas W. Pope, late of Brockton, seeking under R. L. c. 141, § 10, to enforce a claim for services rendered to Thomas W. Pope, which had not been prosecuted within the period of the special statute of limitations.</p> <p>The heirs at law of Thomas W. Pope, alleging that one of the executors was a son of Jane Miller, asked leave to intervene as defendants and were permitted to do so.</p> <p>The suit was referred to a master. Material facts found by him are stated in the opinion. Exceptions by the heirs at law of Thomas W. Pope to the master’s report were heard by Pierce, J., by whose order there were entered an interlocutory decree overruling the exceptions and confirming the report and a final decree directing the defendant executors to pay to the plaintiff $3,960 with interest from the date of the filing of the bill with costs. The heirs at law of Thomas W. Pope appealed.</p>

<p>Railroad, Fire communicated by locomotive engine. Damages, In tort. Evidence, Res inter alios. Res Judicata. Insurance, Fire. Reference and, Referee.</p> <p>While, in an action against a railroad corporation under St. 1906, c. 463, Part'll, § 247, for damage caused by a fire communicated by a locomotive engine of the defendant, an award of referees, chosen in accordance with the provisions of a fire insurance policy in the Massachusetts standard form insuring the owner of the property damaged, of the amount of loss sustained by reason of the fire is evidence for the jury to use in determining how much should be deducted from the damages to be paid by the defendant under the provisions of the statute by reason of the insurance, it is not evidence upon the question of the value of the property damaged, nor is it res judicata as to that value, because the' railroad corporation was not a party to the contract of insurance nor to the proceeding before the referees.</p>

<p>Tort against a deputy sheriff for damages resulting from a false return by him upon a writ against the plaintiff, the return stating that the writ had been served upon the plaintiff when it had been served upon a stranger. Writ in the Police Court of Springfield dated August 31, 1912.</p> <p>On appeal to the Superior Court the case was tried before King, J. The material facts are stated in the opinion. At the close of the evidence by order of the judge the jury found for the plaintiff in the sum of $376.21; and the judge reported the case for determination by this court upon the terms stated in the opinion. The case was submitted on briefs.</p>

<p>Petition, filed in the Superior Court for the county of Worcester on October 18, 1900, by the mayor and aldermen of the city of Worcester under St. 1900, c. 387, to abolish the grade crossings named in that statute. Commissioners were appointed, who on June 18, 1907, filed their decision prescribing the manner in which the crossings were to be abolished, and their decision was affirmed by a decree of the Superior Court. Under St. 1906, c. 463, Part I, § 39, an auditor was appointed to audit all accounts of expense incurred by any of the parties in the case, and such auditor from time to time filed reports upon various statements of expenditures submitted to him by the parties who had done the work necessary to carry out the decision of the commissioners and the decree confirming it.</p> <p>The case came on for hearing before Wait, J., on the exceptions of the Commonwealth and of the New York, New Haven, and Hartford Railroad Company to the auditor’s seventy-first‘report. The judge made an order that the exceptions should be overruled and the report confirmed, but, being of opinion that this order so affected the merits of the controversy that the matter ought before further proceedings to be determined by this court, he reported the case for such determination. If the order made by the judge was proper, it was to be affirmed; otherwise, such order or decree was to be entered as justice and equity might require.</p>

<p>Equity Jurisdiction, To set aside conveyance procured by fraud, To redeem real estate from mortgage. Bills and Notes. Equity Pleading and Practice, Decree, Appeal, Costs. Res Judicata.</p> <p>In a suit in equity to compel the cancellation of a negotiable promissory note and a mortgage of real estáte securing it, which were purchased by the defendant from one who obtained them from the plaintiff by fraud, it is not necessary for the plaintiff, in order to show that the defendant had “knowledge of such facts that his action in taking the instrument amounted to bad faith” within the meaning of It. L. c. 73, § 73, to prove that the defendant knew the exact fraud that was practiced upon the plaintiff by the defendant’s assignor, it being sufficient to show that the defendant had notice that there was something wrong about his assignor’s acquisition of title although he did not have notice of the particular wrong that was committed.</p> <p>Iu a suit in equity to set aside a mortgage of real estate alleged to have been procured from the plaintiffs by fraud, or to redeem the plaintiffs’ land from such mortgage, it appeared that the plaintiffs were illiterate foreigners who understood no English, that the defendant M, intending not to perform such agree-' mcnt, agreed to remodel a certain building belonging to the plaintiffs, and fraudulently procured the execution and acknowledgment by the plaintiffs of a mortgage note and mortgage for $1,500, the plaintiffs being induced to believe that they were signing a building contract, that the defendant M immediately borrowed $500 from one J and indorsed the note and assigned the mortgage to J, who took them in entire good faith, that thereafter the defendant'M, having done none of the work that he had agreed to do, borrowed $1,350 from the defendant P, who paid off the amount of $540 due to J and took an assignment of the note and mortgage, that the defendant P, when he took this assignment, knew that by M’s agreement with the plaintiffs no mortgage was to be given until the work of remodelling had been performed and that the mortgage had been given before any work had been done, and that no work at all had been done although two months had expired, that P also knew that the plaintiffs were foreigners and were illiterate persons and that they had executed the note and mortgage by making their marks. Held, that it was plain that under R. L. c. 73, §§ 72, 73, the note and mortgage were voidable in the hands of M and that under R. L. c. 73, § 69, they were valid in the hands of J to the extent of the loan maSe by him to M; that the defendant P in lending $1,350 upon the plaintiffs’ note and mortgage for $1,500 had knowledge of such facts that he took the note and mortgage in bad faith with notice within the meaning of R. L. c. 73, § 73, although by taking the assignment from J, the bona fide mortgagee, he had become entitled to hold the mortgage to the amount of $540; and that therefore the plaintiffs had the right to redeem the mortgaged property by paying to the defendant P $540 and interest.</p> <p>In the case above described it appeared that the plaintiffs had not asked to have a clause inserted in the decree ordering the defendant M to pay to them the sum of $540 which they were forced to pay in order to redeem their property from the defendant P, and that neither the plaintiffs nor M had appealed from the decree. Held, that, although the plaintiffs would have been entitled to such relief if they had asked for it and had appealed from the decree because it was not given to them, they now must resort to an independent action against M to recover the sum so paid in redemption when they had paid it.</p> <p>It also was said, that under the circumstances stated above the decree in this suit would not be a bar to such an action at law.</p> <p>In the suit in equity above described it was ordered that the plaintiffs should recover from the defendant P their costs taxed in the sum of $35.70 and the further costs of the appeal to this court, and that for the costs amounting to $35.70 there was to be but one satisfaction.</p>

<p>Negligence, Street railway. Carrier, Of passengers.</p> <p>A passenger in a street railway car, who obtains from the conductor on that car a transfer check for transportation on a car whose starting point is a short distance beyond the terminus of the first car, and who on reaching such terminus by direction of the conductor alights with other passengers from the first car and is walking along a public highway for the purpose of boarding the second car, which is waiting to take passengers from the first car at a distance of about three car lengths from it, as matter of law has ceased to be a passenger on the first car and has not become a passenger on the second car, and toward the corporation operating both cars stands in the relation of a traveller on the highway.</p>

Complaint in bastardy process under R. L. c. 82, § 1, received and sworn to on December 18, 1911, in the First District Court of Southern Middlesex. In the Superior Court the defendant was tried before Brown, J., and was found guilty. The defendant alleged exceptions to the admission of certain evidence, which are described in the opinion. The case was submitted on briefs.

<p>Tort by the administrator of the estate of George W. Winslow, late of Saugus, for causing the conscious suffering and death of the plaintiff’s intestate by striking with a Ford motor delivery truck of the defendant a motor cycle on which the intestate was riding on Main Street in Melrose on June 19, 1915. Writ dated September 9, 1915.</p> <p>The first count was for the conscious suffering of the intestate from June 19 until June 28, when he died. The second count was for causing the death of the intestate, who was twenty years of age and unmarried, and was brought for the benefit of his next of kin.</p> <p>In the Superior Court the case was tried before Sisk, J. The Ford motor delivery truck was owned by the defendant and was being operated by one Bartlett, who was in the general employ of the defendant and who was accompanied by one Clifford, who also was in the general employ of the defendant and was instructing Bartlett in the operation of the Ford machine. Both the motor cycle and the delivery truck were registered. The plaintiff’s intestate had a license to operate the motor cycle in his possession at the time of the accident and Clifford had in his possession at the time of the accident a license to operate motor vehicles.</p> <p>The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for it. This the judge refused to do. The defendant then asked the judge to make, among others, the following rulings:</p> <p>“1. There is no evidence that the defendant or its agents or . servants were negligent.”</p> <p>“ 15. If the jury find that the person operating the automobile had a right to operate it, even if the jury also find that his lack of experience contributed to the accident, the plaintiff cannot recover if the person operating the automobile was acting with as much care and skill as could reasonably be expected from a person of his lack of experience under all the circumstances existing at the time of the accident.”</p> <p>The judge refused to make either of these rulings. In the course of his charge the judge instructed the jury as follows:</p> <p>"Now there is a sharp conflict of evidence as to the movements of the motor cycle as it was passing the auto and the distance it was ahead of the auto when the deceased turned from the tracks of the railroad company into or toward the macadamized road, as bearing on the question of the defendant’s negligence. You see this becomes of importance because it cannot be claimed that the driver or those in charge of the auto were negligent if the driver of the motor cycle suddenly without warning turned from the track on to the macadamized road in front of the auto, or within such a short distance that the driver could not, in the exercise of due diligence under the circumstances, prevent the auto from striking the motor cycle. The evidence is in conflict as to whether when the deceased turned from the track into the macadamized road the right hind wheel of the motor cycle did not skid and throw him off or so that he was partially off with one foot on the ground. So you can see the importance of determining the distance between the two vehicles at the time when the motor cycle turned from the tracks to the right side of the road. Did those in charge of or who were operating the auto act as reasonably prudent men ought to act in the management of the auto under all the circumstances as disclosed here? That is, whoever was driving, or if they were both driving, it is for you to say if he or they were acting as reasonably prudent men ought to act under like circumstances to stop the auto before it struck the motor cycle. If you say they did not and so failed to stop the auto, that would be evidence of negligence on the part of the defendant under all the circumstances as disclosed here. The question is, did those in charge of this auto act as reasonably prudent men ought to act in the management and control of the car under all the circumstances? The burden of proof is on the plaintiff to prove that he or they did not so act by a fair preponderance of all the evidence, and that the accident was due to such negligence; and if he fails in so doing, then your verdict should be for the defendant. If the plaintiff has sustained this burden that rests upon him, then you proceed to the question of the intestate’s due care.”</p> <p>The defendant excepted “to that portion of the charge which lays down the standard of care as being that of an ordinarily prudent man without calling further attention to the possible incapacities of this particular chauffeur, Bartlett.”</p> <p>The jury found for the plaintiff in the sum of $5,500, assessing the damages on the first count for conscious suffering in the sum of $500 and the damages on the second count for causing death in the sum of $5,000. The defendant alleged exceptions.</p>

<p>Real or Personal Property. Landlord and Tenant. Fixtures. Land Court, Decree. Evidence, Competency, Admissions. Equity Pleading and Practice, Exceptions.</p> <p>In a suit in equity by the lessee of one of a large number of lots of beach land, formerly owned in turn by an unincorporated association and by a corporation, against one who had purchased the fee of the. lot, to restrain the defendant from interfering with two houses upon the lot which the plaintiff contended were personal property, there was evidence tending to show that the houses were built on sand, rested on posts and had no cellars, that one had a brick chimney which was added to the house long after it was built and rested on the ground, that a chimney in the other house did not go through the floor; that leases made by the defendant’s predecessors in title were of the land only and that they had treated the houses as personal property and never had made any claim to ownership of them. The judge found that the houses were personal property. Held, that it could not be said that the judge’s finding was clearly wrong, nor could it be ruled as a matter of law that the title to the houses was in the defendant as a part of the realty.</p> <p>In view of the finding above described, the case did not call for an application of the law as to fixtures.</p> <p>The mere fact that, in the lease of the land upon which the buildings above described stood, the lessee covenanted to “deliver up the premises ... in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are . . .” and that he would “not make or suffer any waste thereof; ... or make or suffer to be made, any alteration therein,” was held not to be conclusive against the plaintiff upon the question of the ownership of the buildings.</p> <p>The mere fact that by a decree of the Land Court the title to certain land was , registered as belonging to a lessor does not preclude his lessee from claiming buildings upon the land as his personal property.</p> <p>In the suit above described, testimony of one, who was for many years the collector and treasurer of both of the former proprietors of the lots, to the effect that neither of such proprietors ever had claimed ownership of the houses upon the land, was held to be competent.</p> <p>Official reports made by the same witness to his employers and showing that the rent received was for the lots only also were held to be competent and admissible.</p> <p>The records of the defendant’s predecessor in title, which was a corporation, tending to show the authority of its officers to fix rents also were held to be admissible ■ in evidence in the suit above described.</p> <p>In the suit above described, the testimony of one of the associates who were predecessors in title of the defendant, who also at one time was president of the corporation which succeeded the associates, to the effect that the corporation never claimed ownership in the houses upon the lots, that the houses usually were sold by the owners by bills of sale, that neither of the defendant’s predecessors in title ever placed any fire insurance upon any of the houses on the beach nor upon the house in question, was held to be admissible upon the question whether the houses were personal property.</p> <p>The testimony of the president of the corporation above described, that he had protested for the corporation to the tax commissioner of the Commonwealth against an assessment of the houses as property of the corporation, was held to be admissible as an acknowledgment on the part of the plaintiff’s lessor that it did not own the houses.</p> <p>It was held, that testimony of the assessor of taxes of the town in which the lots above described were situated, to the effect that at one time the taxes on the houses were assessed to the respective owners of the houses, and that the land was not assessed to the owners of the houses, if incompetent, did not injuriously affect the substantial rights of the defendant, and that therefore an exception by the defendant to its admission must be overruled.</p> <p>An exception to the admission in evidence at the hearing of a suit in equity of a statement in writing by a witness which has no bearing upon the issues upon trial must be overruled if it appears that the witness fully explained the statement and that the rights of the excepting party were not prejudiced by the evidence.</p> <p>An exception to an incompetent question must be overruled if it does not appear that the question was answered directly or so as to harm the excepting party.</p>

<p>Pauper. Commonwealth. State Board of Charity. Practice, Civil, Report. • Words, “Expense.”</p> <p>The expense described in St. 1902, c. 213, § 2, as amended by St. 1907, c. 386, § 2, providing in substance that no person for whose care and maintenance a city or town or the Commonwealth has incurred expense in consequence of certain diseases dangerous to the public health shall be deemed to be a pauper by reason of such expenditure, does not include aid furnished by the overseers of the poor of a municipality to the wife and family of one whom, because he was afflicted with tuberculosis, the municipality caused to be removed fron/his family to a camp maintained by it.</p> <p>The expenditure made by a municipality for the isolation of a man afflicted with tuberculosis will not prevent the man or his wife and family from being deemed to be paupers if the overseers of the poor of the municipality, considering it for the public interest, furnish to the wife and family aid as poor persons in need thereof, St. 1902, c. 213, § 2, as amended by St. 1907, c. 386, § 2, not being applicable.</p> <p>It also was held,, that upon the record in this case it was not open to the Commonwealth to rely on the decision in Berkeley v. Taunton, 19 Pick. 480, and to contend that there was no evidence that the husband knew of the aid furnished to his wife and children.</p> <p>It also was held that the report of the judge precluded the Commonwealth from contending that it was not liable because the aid furnished to the wife and children was not with the approval of the State board of charity required by R. L. c. 81, § 21, as amended by St. 1903, c. 355, and St. 1912, c. 331.</p> <p>It was not intimated that the State board of charity, under the circumstances above described, could withhold such approval arbitrarily.</p>

<p>Capital and Income. Trust, Trustee’s accounts.</p> <p>A will provided in substance that the testator’s widow should receive during her life the net income of certain property placed in trust. The trust property consisted in part of parcels of vacant and unproductive land. The trustee during the life of the widow paid $2,270.76 from the income for the maintenance of one parcel of vacant and unproductive land. After the death of the widow, the trustee sold the parcel in question. At a hearing upon the account of the trustee stating the sale, the executor of the will of the widow contended that the amount previously charged to income for upkeep of the land in question should be returned to income and charged to principal, that the expense of the sale should be charged to principal, that there also should be added to income an amount which would represent the income from the proceeds of the sale if it had been made at the time of the death of the testator and that the balance of income so obtained should be turned over to the executor of the widow as having been her property. Held, that, while such an adjustment of accounts might have been proper if the unproductive real estate had been sold before the death of the widow, it ought not to be made in this case, where the sale occurred after her death.</p> <p>In the same case it was said that the question, whether the expenses incurred in the maintenance and sale of the unproductive land properly could have been deducted from the principal of the fund during the lifetime of the widow, need not be decided.</p>

<p>Partnership. Practice, Civil, Discontinuance against one joint tortfeasor. Joint Tortfeasors. Release. Negligence.</p> <p>Partners are liable jointly and severally for personal injuries resulting to a person, when rightfully upon the premises where the firm’s business is conducted, from the negligent act of one of the partners committed within the scope of the partnership business.</p> <p>A discontinuance, as against one of two partners, of an action of tort for personal injuries brought against both partners jointly does not operate as a release of the other partner from liability for the tort.</p> <p>At the trial of an action for personal injuries, where it appears that the plaintiff was injured when he stepped backward, as he was leaving a bar room, into a trap-door which had been opened a moment before, the degree of light or darkness about the place not being plainly shown by the record, the question of the plaintiff’s due care is for the jury.</p>

<p>Equity Jurisdiction, To relieve from fraud, Rescission, Laches. Contract, Rescission. Sale, Rescission. Election. Equity Pleading and Practice, Appeal, Amendment. Survival of Action or Suit.</p> <p>In a suit in equity against the executor and a devisee under the will of one who had induced the plaintiff to exchange valuable real estate for shares of the capital stock of a certain corporation manufacturing vitrified bricks, owned by a confederate of the defendant’s testator, by false representations as to the value of the property owned by the corporation, as to the extent of the business it was doing and the amount of profit it was mating, as to an eagerness on the part of a banting house and other investors to purchase its capital stock, as to a number of large orders given to it for its manufactured product, and that the shares being sold to the plaintiff were treasury stock so that what he gave for them would go into the treasury of the corporation, it was held that findings of fact by a master to whom the suit was referred showed that the false representations were assertions of material facts as distinguished from mere seller’s or promoter’s talk or expressions of opinion, and that the plaintiff was entitled to relief.</p> <p>The facts that the plaintiff in the suit above described, after a visit to the plant of the corporation in a distant State eleven months after the transaction sought to be rescinded had taken place, had felt dissatisfaction with conditions as he found them and then continuously had asked the .defendant’s testator to reconvey his land to him in return for a retransfer of the shares of stock, that within sixteen months after the transaction he had purchased $5,000 worth of bonds of the corporation secured by a mortgage upon its property, the plan, which did not succeed, being to use the proceeds of the bond sale to pay off the indebtedness of the corporation, to secure the stockholders and to furnish funds to carry on the business, that a receiver of the corporation had been appointed two years and eight months after the transaction and that the plaintiff had not begun his suit against the defendant’s testator until two years and one month thereafter and one year and seven months after the death of the defendants’ testator, do not as a matter of law show an affirmation or ratification of the transaction by 'the plaintiff.</p> <p>One, who by deceit had been induced to purchase shares of the capital stock of a corporation and who afterwards also purchased bonds of the corporation secured by a mortgage of its property, is not required, as a condition precedent to procuring a decree rescinding the purchase of the shares of stock in a suit in equity against the executor of the will of the person whose deceit had led him to make the purchase, to return or to offer to return the bonds.</p> <p>Upon the allowance of an amendment changing an action at law into a suit in equity, the case must be treated as if originally commenced by a bill in equity. A suit in equity to rescind a transaction whereby, through deceit, the plaintiff was induced to part with his property, may be maintained, after the death of the person who had perpetrated the fraud upon the plaintiff, against the executor of such person’s will and one to whom he had devised the property which by such acts of fraud he had obtained from the plaintiff.</p> <p>If, in eleven months after a sale, procured by fraud and deceit, of property in exchange for worthless shares of the capital stock of a corporation, the defrauded person began continuously seeking a rescission of the sale and the fraudulent person until his death three years and two months after the sale continually promised that such rescission would be effected, and if in the meantime a receiver of the corporation’s property was appointed, a suit in equity for a rescission of the sale and a reconveyance of the property, begun one year and seven months after the death of the fraudulent person against the executor of his will and one to whom he had devised the property procured by the fraud, is not barred by loches.</p>

<p>“ Petition to dissolve attachment,” filed on October 6,1916, under R. L. c. 167, § 110, as amended by St. 1909, c. 190, seeking the dissolution of an attachment made by the plaintiff in an action at law brought by David H. Greenhood against Malbon G. Richardson and others, the petitioners, on the ground that such attachment was excessive and unreasonable.</p> <p>In the Superior Court the petition was heard by Lawton, J., who made an order “that the prayer of said petition be granted and that the attachment be and it hereby is dissolved.”</p> <p>The respondent appealed from the order.</p>