Volume 226 — Massachusetts Reports

<p>Tort against the George A. Fuller Company, a corporation having its usual place of business in Boston, for personal injuries sustained on June 19, 1913, when the plaintiff was employed as a carpenter by the National Fireproofing Company and was working on a building at the corner of Howard Street and Scollay Square in Boston that was being constructed by the defendant as general contractor, by reason of being struck by a wooden plank that negligently was dropped from above by a servant of the " defendant acting within the scope of his employment. Writ dated September 12, 1913.</p> <p>The defendant’s answer, among other alleged defences, contained the following allegations:</p> <p>“And further answering the defendant says that the plaintiff at the time of the alleged accident was in the general employ of the National Fireproofing Company, which company was then employed by the defendant as a subcontractor, and that the plaintiff was therefore subject to the provisions of St. 1911, c. 751, and acts in amendment thereof and in addition thereto, being the workmen’s compensation act so called, and that he had never under the terms of said acts reserved his common law rights either as against said National Fireproofing Company, or as against the defendant, and is therefore precluded from recovering against the defendant, and further that he has already elected to receive compensation under said acts and is accordingly for -that reason also barred from recovering against the defendant.”</p> <p>In the Superior Court the case was tried before Brown, J. The facts that could have been found upon the evidence are stated in the opinion. It was undisputed that the plaintiff had not made any reservation of his common law rights, in accordance with Part I, § 5, of the workmen’s compensation act, so called, either as against his employer, the National Fireproofing Company, or as against the defendant. It further was undisputed that the defendant carried compensation insurance for its workmen in the Casualty Company of America, an insurance company duly authorized to do business within the Commonwealth, in accordance with Part V, § 3, of the act, and that notices to this effect were posted properly on the building. The National Fireproofing Company was one of twenty-three subcontractors variously furnishing work or materials upon the building in question. There was no question that at the time of the plaintiff’s accident the National Fireproofing Company was engaged in its work as such a subcontractor and that the plaintiff himself was employed in its prosecution by the National Fireproofing Company, was paid by that company and was entirely under its control except in so far as the National Fireproofing Company was a subcontractor of the defendant.</p> <p>Upon these facts the defendant asked the judge to order a-verdict in its favor upon the ground that the plaintiff’s only rights as against the defendant arose under the terms of the workmen’s compensation act, and more specifically under the provisions of Part I, § 5, and Part III, § 17. Thereupon the judge ordered a verdict for the defendant and reported the case for determination by this court. If his ordering of the verdict was right, judgment was to be entered for the defendant on the verdict; if it was wrong, by agreement of the parties judgment was to be entered for the plaintiff in the sum of $2,000.</p>

<p>Bill in equity, filed in the Superior Court on June 16,1915, by the owner of the unsold lots in the Harbor View Cemetery at Marblehead to enjoin Ariel O. Younger and Henry L. Martin from committing trespasses on these lots and removing sods, soil and gravel therefrom.</p> <p>The case was referred to a master “to hear the case on its merits.” The master filed his report, in which he found the facts that are stated in the opinion. Later the case was heard by Raymond, J., on a motion to confirm the master’s report and to enter a decree in accordance with the findings therein. The judge made an order confirming the master’s report, and thereafter by his order a final decree was entered in which it was “found and decreed that the certificates signed by the defendant Henry L. Martin, dated June 27, 1913, October 24, 1913, and December 26,1913, purporting to be evidence of sales of certain lots in Harbor View Cemetery in said Marblehead, to the defendant Ariel O. Younger, and upon which the defendant Younger depends for his alleged title to said lots, did not convey title thereto to said Younger but each and all of said lots were and are included in ‘the premises being the unsold lots in what is locally known as Harbor View Cemetery’ and passed to the plaintiff under the deed of Eben T. Brackett, deputy sheriff,dated November 7,1914.”</p> <p>It was “further ordered and decreed that the defendants, their servants and agents be forever enjoined from entering the premises described in the plaintiff’s bill and from removing sods, soil or gravel therefrom, particularly from the lots above referred to, to wit, lots numbered 140 to 143 inclusive, 145 to 163 inclusive, 185 to 200 inclusive, and the parcel described as 345 single graves.” The defendant appealed.</p> <p>R. L. c. 78, § 30, is as follows: “Except in the case of the erection or use of a tomb on private land for the exclusive use of the family of the owner, no land, other than that already so used or appropriated, shall be used for the purpose of burial, unless by permission of the town or of the mayor and aldermen of the city in which the same lies. For every interment in violation of the provisions of this section in a city or town in which the notice prescribed in the following section has been given, the owner of the land so used shall forfeit not less than twenty nor more than one hundred dollars.”</p>

<p>Contract to recover a commission alleged to be due to the plaintiff for effecting the sale of a Mercedes motor truck belonging to the defendant. Writ dated October 1, 1913.</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 defendant, among other requests, asked the judge to make the following rulings:</p> <p>“2. There is no evidence that the defendant authorized the employment of the plaintiff as his exclusive agent in the sale of the truck in question.”</p> <p>“4. On all the evidence the plaintiff! was not the efficient cause of the sale of said truck.”</p> <p>The judge refused to make either of these rulings. He stated to the counsel that he adopted the other rulings requested by the defendant. In his charge to the jury he gave as instructions these other rulings except the seventh which he 'omitted to read or state to the jury. It was as follows: “7. The receipt given by the plaintiff to Harold Smith, dated August 5, 1913, is not evidence that the plaintiff was given the exclusive sale of said truck.”</p> <p>The material instructions of the judge are described in the opinion. The jury returned a verdict for the plaintiff in the sum of $1,031.62; and the defendant alleged exceptions.</p>

<p>Damages, For breach of contract. Contract, Performance and breach. Trustee Process. Practice, Civil, Vacation of judgment, Bond to dissolve attachment. Judgment. Attachment. Bond, To dissolve attachment.</p> <p>In an action for breach of a contract to employ the plaintiff for a year, under which the defendant was to pay to the plaintiff a certain stated salary and commissions on sales made by him of a certain fireproof building material, it appeared that the contract was made in September of a certain year, that from January 1 to September of that year the plaintiff had been in the defendant’s employ in the same capacity under a contract by which he worked for the defendant for only half of his time and that during that period he had secured contracts for the defendant amounting to $51,000 or $52,000; that the method of conducting business was for the plaintiff to call upon architects and get plans and specifications of fireproof buildings to be constructed and to submit them to the defendant; that the plaintiff was discharged by the defendant two months after the contract upon which the action was based was made, and that during those two months he had not procured any contract for a sale of the defendant’s material. Held, that by reason of the plaintiff being deprived of the opportunity of earning commissions during the ten months remaining of the contract period, a finding was warranted awarding damages to him beyond the amount of his stated salary and expenses, and that in ascertaining the amount of such damages it was proper to take into consideration and to use as a basis the amount of his earnings during the preceding nine months under the previous contract.</p> <p>While, in an action begun by trustee process, the rendering of a judgment against the principal defendant without charging the trustee discontinues the action as to the trustee, the court, under the provisions of R. L. c. 193, § 14, has power upon a vacation of that judgment to dispose of the case as though there had been no discontinuance against the trustee and to order the trustee charged upon his answer.</p> <p>The provisions of R. L. c. 177, § 25, giving the court power to enter a special judgment against a defendant who has been declared a bankrupt which shall be sufficient to enable the plaintiff to maintain an action against the sureties upon a bond given by the defendant more than four months before the bankruptcy proceedings to dissolve an attachment, do not give the court power to order such a judgment where the bond given by the defendant was a common law bond or contained the condition of the bond authorized by R. L. c. 189, § 65, to be given for the purpose of dissolving an attachment made by trustee process by one claiming an interest by assignment or otherwise in the property attached.</p>

<p>Unlawful Interference. Labor. Labor Union. Equity Jurisdiction, To enjoin unlawful interference.</p> <p>A labor union, which controlled ninety per cent of the laborers employed in the shoe industry in a certain city, made with several of the manufacturers a contract under seal which contained a provision that, “so long as these local unions are in a position to furnish help to do the work no other help may be employed.” A member of the union, who had worked for one employer in the city for eight years, whose employer had not made the employment subject to the condition that he should continue a member of the union, and whose work for his employer was satisfactory, was expelled from the union after a hearing duly conducted for an infraction of the union’s rules in that he had become a member of a rival organization and a business competitor of the union; and thereafter the union “to punish him and hold him up as an example before their membership” procured his discharge by his employer, who but for the action of the union would have continued him in employment, and by another firm who afterwards employed him, and, by reason of the action of the union, it became impossible for him to obtain work with any one of ninety per cent of the factories in the city because they were controlled by the union in the city, and highly improbable that he could obtain work with any one of the other ten per cent. Held, that the discharged laborer manifestly was a sufferer from the consequences of an illegal boycott and might maintain a suit in equity to enjoin the officers and members of the union from further interference with his right to labor, and for damages.</p> <p>The right to acquire property by labor is coequal with the right to acquire property by contract.</p> <p>It is an actionable wrong for a labor union malevolently to take away or to impair a laborer’s right to his handiwork as a means of subsistence.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on September 20, 1915, by officers of the United Shoe Workers of America, an unincorporated voluntary association and trade union, who brought the suit in behalf of that association against the officers and members of the Lasters’ Protective Union of Lynn, .an unincorporated voluntary trade union, seeking to enjoin the defendants from taking any action to cause or intended to cause the breaking of certain agreements made between the plaintiffs, when the defendants were members of their union, and certain manufacturers in Lynn relative to the employment and treatment of labor.</p> <p>The suit was referred to a master. As to the plaintiffs, he found that “the United Shoe Workers of America ... is a voluntary unincorporated trade union, organized in September, 1909. It has to do solely with the shoe industry, and is composed wholly of shoe workers. It is national in scope. The headquarters of the parent organization are in the city of Boston, while it has subsidiary branches in many of the principal shoe manufacturing centres of the United States in the shape of local unions of its members, or joint councils composed of two or more of such local unions, all operating under charters granted by its general executive board. It has a written constitution. . . . Under its constitution the management of its affairs and the control of the operations of its local unions and joint councils are vested in this general executive board, whose decision on all matters pertaining to the organization is final, subject to an appeal to the next convention of the association or to its entire membership, on certain terms and by certain prescribed methods.</p> <p>“At a regular meeting of the general executive board held in Boston January 1, 1915, its four Massachusetts members were, by vote, made the 'resident committee’ of the board for the ensuing six months,, and by the same vote all the powers of the general executive board so far as Massachusetts was concerned were delegated to such committee. There is no specific constitutional provision for such resident committee.”</p> <p>Other findings of the master are described in the opinion.</p> <p>Exceptions by the defendants to the master’s report were heard by Carroll, J., and by his order an interlocutory decree was entered overruling the exceptions and confirming the report.</p> <p>By order of De Courcy, J., a final decree was entered granting the injunction prayed for by the plaintiffs. The defendants appealed.</p>

<p>Pledge. Equity Jurisdiction, To foreclose pledge of right in equity, Remedy at law. Jurisdiction. Equity Pleading and Practice. Bill.</p> <p>In reorganization of a foreign corporation, holders of bonds issued by it and secured by a mortgage of real estate owned by it assigned and delivered their bonds to a reorganization committee in trust to carry out the terms of the reorganization - plan and the committee upon receipt of the bonds issued to each bondholder a certificate of deposit in which they agreed that, “Upon said Reorganization Plan being completed,” the depositor “or .. . assigns shall be entitled to the securities issued according to” the plan “upon return of this certificate duly indorsed by the holder thereof or . . . assignee.” The plan did not contemplate a return of the deposited bonds nor set a time dining which the committee should act and the trust continue. A United States District Court had appointed a receiver who was in possession of the property of the foreign corporation. A Massachusetts holder of such a certificate of deposit delivered it to a Massachusetts bank as collateral security for a negotiable promissory note. Upon default in payment of interest upon the note, the bank brought a bill in equity for a foreclosure by a sale of the certificate and an application of the proceeds of the sale. The defendants demurred. Held, that the pledge was not restricted to the legal interest of the pledgor in the certificate as a chattel, that the transfer of the certificate as security for the note created an equitable pledge of the pledgor’s right in equity to compel the performance of the obligation arising out of the certificate, and that the suit might be maintained.</p> <p>It also was held that, the surrender of the certificate above described being a condition precedent to a right of enforcement in equity of the obligation arising out of it, the situs of that right was with the pledgee.</p> <p>Whether, in this Commonwealth under R. L. c. 159, § 1, jurisdiction in equity will be assumed of a suit to foreclose a pledge of personal property, or it will be refused, in the absence of special circumstances, where there is a statutory remedy which is plain, adequate and complete, was not determined in this case where the statutory remedy was not plain, adequate and complete.</p> <p>It also was held that the fact that a note, to secure which the certificate above described was pledged, contained a provision that, upon default in payment of principal or interest of the note when due, the holder might sell it without notice at any broker’s board or at public auction or private sale, did not preclude the plaintiff from seeking to foreclose by a suit in equity.</p> <p>A bill in equity should not be dismissed, upon a demurrer, merely because it asks for more relief than the court upon a final hearing may adjudge that the plaintiff is entitled to.</p>

<p>Cross actions of contract, which are described in the opinion, the first brought by Cyrus Mark, Clayton Mark and Anson Mark, copartners doing business in Chicago in the State of Illinois under the name Mark Manufacturing Company, against the Stuart-Howland Company, a corporation organized under the laws of the State of Maine and having its usual place of business in Boston; and the second action by the defendant in the first action against the plaintiffs in that action. Writs dated respectively May 10, 1909, and January 22, 1912.</p> <p>In the Superior Court the cases were tried together before White, J. The material evidence is described in the opinion.</p> <p>The contract on which both actions were brought was as follows:</p> <p>“Memorandum of'agreement made and entered into this 25th day of May, 1908, by and between the Mark Mfg. Co., a copartnership (composed of Clayton Mark, Cyrus Mark and Anson Mark,) having its regular place of business in Chicago, party of the first part, and the Stuart-Howland Co., a corporation duly organized under the laws of the state of Maine and having its regular place of business in Boston party of the second part “Witnesseth:</p> <p>“That for and in consideration of one dollar ($1.00) by each to the other paid, receipt for which is hereby acknowledged, and the covenants and conditions herein contained, the parties hereto agree as follows:</p> <p>“The party of the first part appoints the party of the second part its exclusive selling agent for its entire line of rigid iron conduit for the six New England States and agrees to refer to it all orders and inquiries emanating from that territory.</p> <p>“The party of the first part quotes the party of the second part a discount of 50, 4/10s & 5 from its regular published list in any quantity in free delivery territory with the understanding that price shall be raised or lowered according to market conditions but that the party of the first part will at all times during the life of this contract allow the party of the second part a 5% better price than that quoted by the so-called ‘Associated Manufacturers/</p> <p>“ The party of the first part agrees to ship as promptly as possible the orders of the party of the second part, to furnish such printed matter bearing the imprint of the party of the second part as may be mutually deemed desirable and to aid the said party of the second part in every reasonable way in marketing the goods in the above mentioned territory.</p> <p>“The party of the second part agrees to push the sale of the above mentioned material manufactured by the party of the first part in preference to all others and to pay all bills on or before the 10th of the month succeeding date of shipment less 5% and should any payments be delayed beyond that date, to pay interest thereafter at the rate of 6% per annum.</p> <p>“This agreement to remain in force for two years from this date and thereafter until cancelled by 60 days’ written notice of either party. It is, however, hereby understood and agreed that the party of the second part shall have the privilege of cancellation by giving the party of the first part notice in writing at any time during the life of this contract.</p> <p>“In witness whereof we have hereunto set our hands and seals the day and year first above written.</p> <p>Sadie A. Phelan Mark Manufacturing Co.</p> <p>Witness. Copartnership.</p> <p>Sadie A. Phelan D. L. Markle</p> <p>Witness. Stuart-Howland Co.</p> <p>By G. M. Stuart.”</p> <p>The defendant in the first case, among other requests, asked the judge to make the following rulings, which are mentioned in the opinion:</p> <p>“10. There is evidence that the Mark Company committed a breach of the contract by which the parties were bound in refusing to accept the order of December 12, wherefrom the jury may find that the Mark Company lost or forfeited its right to recover for the invoices of January 10 and February 10.”</p> <p>“25. The Mark Company have not sustained the burden of proof that on or before Dec. 15, 1908, they had performed all conditions and things to be performed by them to entitle them to call upon the defendant for performance of its part.”</p> <p>“32. The voluntary refusal of the Mark Company to accept the Stuart Company’s order of December 12 constitutes a breach of contract going to the essence thereof and precludes recovery by the Mark Company either upon the contract or upon a quantum ‘meruit.”</p> <p>The judge refused to make these rulings. A portion of his charge to which the defendant excepted is quoted in the opinion. The judge ordered a verdict for the plaintiffs in the first case in the sum of $11,146.77, and ordered a verdict for the defendants in the second case. Both parties alleged exceptions.</p> <p>The judge allowed the bill of exceptions presented by the defendant in the first case after striking out certain portions of it. The defendant thereupon filed in this court a petition for the establishment of the truth of the portions of its bill of exceptions which were disallowed by the judge.</p> <p>The plaintiffs’ exceptions related to a single point. The judge in ordering the jury to return a verdict for the plaintiffs ordered it in an amount which was computed by deducting five per cent from the price to be paid by the defendant for shipments in June, 1908, although they were not paid for by the defendant on or before July 10, 1908. This exception is explained in the opinion.</p>

<p>Wagering Contracts. Evidence, Presumptions and burden of proof, Materiality, Remoteness. Practice, Civil, Finding of judge, Proof of foreign law. New York. Words, “Short sale,” “Valid contract therefor.”</p> <p>In an action under R. L. c. 99, §§ 4, 6, against a stockbroker to recover money paid as margins on alleged wagering contracts, there was evidence that numerous “short sales” were ordered by the plaintiff and were made by the defendant and there was evidence on which it might have been found that a “short sale” was a sale of stock which the seller did not own. Held, that under § 6 mentioned above this was “prima facie evidence that . . . there was an intention that there should be no actual purchase or sale, and that there was reasonable cause to believe that said intention existed.”</p> <p>In the same case it was held that the fact that the evidence mentioned above in regard to short sales was introduced wholly by the defendant in no way deprived the plaintiff of the right to rely on it.</p> <p>In the same case it was held, that a general finding of the judge for the plaintiff imported a finding of all the subsidiary facts essential to that conclusion, and necessarily included a finding that the plaintiff intended that there should be no actual purchases or sales on his orders.</p> <p>In the same case it was held, that a finding, that the plaintiff had no intention as to whether the defendant actually should receive from or deliver to any one certificates of stock ordered by him to be bought or sold, was not inconsistent with a finding that the plaintiff intended that there should be no actual purchases or sales on his orders.</p> <p>In the same case it was held that a finding that the plaintiff intended that all dealings upon his orders should be carried on by the defendant “upon the New York stock exchange ... in accordance with its rules” was not incompatible with a general finding for the plaintiff; because there might be wagering even though the rules of the stock exchange were observed strictly.</p> <p>In the same case it was held that the general finding for the plaintiff also necessarily imported a finding, that the defendant had not shown that actual purchases or sales were made by the defendant upon all the orders of the plaintiff and a finding of all the subsidiary facts essential to that conclusion.</p> <p>In the same case it was held, that on the evidence presented the defendant had failed to show actual purchases and sales as defined in Fiche v. Doucette, 206 Mass. 275.</p> <p>Discussion by Rugg, C. J., of the course of business of the stock exchange and of the clearing house, as shown in the present case, in regard to its relating to sales of securities and not to contracts for future deliveries within the meaning of R. L. c. 99, § 4.</p> <p>In the provision of R. L. c. 99, § 4, that there shall be no right of action under that section if the person employed to make a purchase or sale of securities “makes ... an actual purchase or sale of said securities . . ., or a valid contract therefor,” the words “or a valid contract therefor” refer to contracts for future deliveries and not to those for present sales.</p> <p>In the case above described it appeared that in none of the many short sales made by the defendant upon the order of the plaintiff did the plaintiff deliver or intend to deliver any certificate or certificates of stock and that the defendant knew this to be so and never demanded any certificate or certificates, and it was held that the trial judge was not required to find that there were valid contracts for sale within the meaning of the statute.</p> <p>In the same case it was held that the judge was not bound to find, upon the evidence of the law of the State of New York presented at the trial, that the transactions of the defendant with the plaintiff were actual purchases or sales or valid contracts therefor under the law of New York.</p> <p>In tile same case it was held that the law of New York was a fact upon which the finding of the trial judge was final if there was any evidence to warrant it.</p> <p>In the same case witnesses for the defendant, who had been permitted to testify that there was no instance of a transaction between the plaintiff and the defendant when the defendant did not have an actual transaction with some other broker, that none of the transactions of the defendant on the stock exchange was fictitious and that the business done by the defendant with the plaintiff was executed in the same manner as was all business done on margins, were not allowed to testify that the defendant never had carried on fictitious transactions in the purchase or sale of stocks. Held, that the ruling as to the testimony admitted was sufficiently favorable to the defendant, and that the testimony excluded was excluded properly in accordance with the general rule that evidence as to what has been done with other persons and on different occasions is not material in trying to ascertain the truth respecting a particular transaction.</p> <p>In the case above described the judge refused to find and to rule that the defendant had repaid a certain amount of money to the plaintiff with which he should be credited, and it was held, that, if the repayments were op account of unlawful transactions, the defendant was not entitled under the statute to be credited with them, and that the facts disclosed by the record were not sufficient to require a ruling that as matter of law the repayments should be credited to the defendant.</p>

Tort, against a corporation owning and maintaining a motor truck, for personal injuries sustained by the plaintiff on June 12, 1913, when she was travelling on the front seat of an open street railway car on Washington Street near Union Park Street in Boston, by reason of a collision of the street railway car and the truck alleged to have been caused by the negligence of the defendant’s servant in operating the truck. Writ dated October 11, 1915.

<p>Workmen’s Compensation Act. Notice. Agency, Scope of authority.</p> <p>Under St. 1911, c. 751, Part II, § 18, which provides that "Want of notice shall not be a bar to proceedings under this act, if it be shown that the association, subscriber, or agent had knowledge of the injury,” an oral notice cannot take the place of the notice in writing required by § 16, nor is an oral notice to the subscriber necessarily the equivalent of knowledge of the injury, but it may be evidence warranting a finding that the subscriber had knowledge of the injury.</p> <p>Where knowledge by an employer of an injury to an employee is proved by evidence of oral information given by the workman to his employer of his injury, such information is sufficiently early if if was given within the time which is required by the statute for the giving of a notice in writing of the injury.</p> <p>Where a workman employed by an iron company, which was a subscriber under the workmen’s compensation act, was sent to repair a boiler in a greenhouse, and while working there alone received “a slight scratch or break on the tip of the elbow” but “did not think it was severe enough to amount to anything” and worked on the following day, and five days later, on learning from a physician whom he consulted that his injury was a serious one, he went to the office of his employer and told the foreman of his injury, it was held, that a finding was warranted that the employer had knowledge of the injury as soon as practicable after its occurrence and was not prejudiced by the delay.</p> <p>In the same case it appeared that the person whom the employee told of his injury was the foreman of the employer’s construction department and that the injured employee worked under him and received orders and instructions from him, and it was held, that a finding was warranted that this foreman represented the employer in its relations to this employee and that his knowledge of the injury was the knowledge of the employer.</p>

<p>Three actions of contract against the city of Boston to recover the amounts of taxes paid by the plaintiff under protest in three successive years as described in the opinion. Writs dated July 28, 1915, and January 20, 1916.</p> <p>In the Superior Court the cases were heard together by Irwin, J., without a jury. The facts are stated in the opinion. The judge ruled and found for the defendant in each case; but, being of opinion that the questions of law involved ought to be determined by this court, he reported the cases for such determination.,</p> <p>The whole of the first excepting clause, of St. 1909, c. 490, Part I, § 23, is as follows:</p> <p>"First, Goods, wares, merchandise, capital employed in business and stock in trade, except ships or vessels owned by a copartnership, and stock employed in the business of manufacturing or of the mechanic arts in cities or towns in the Commonwealth, other than those in which the owners reside, whether such owners reside within or without the Commonwealth, shall be taxed in the cities or towns in which the owners hire or occupy manufactories, stores, hotels, or offices, shops or wharves, whether such property is in said places or elsewhere on the first day of May of the year when the tax is.assessed. The merchandise of a foreign corporation shall be assessed in the city or town where it is situated.”</p>

<p>Contract for $1,000 upon a policy of accident insurance as described in the opinion. Writ in the Municipal Court of the City of Boston dated July 1, 1914.</p> <p>Upon the evidence, which is described in the opinion, the judge of the Municipal Court found for the plaintiff in the sum of $1,000, and at the request of the defendant reported the case to the Appellate Division.</p> <p>The Appellate Division made an order dismissing the report; and the defendant appealed.</p> <p>R. L. c. 29, § 20, is as follows: “The record of the city or town clerk relative to a birth, marriage or death shall be prima facie evidence of the facts recorded. A certificate thereof, signed by the city or town clerk or assistant clerk, shall be admissible as evidence of such record.”</p>

<p>Bond, To dissolve attachment. Surety. Practice, Civil, Amendment.</p> <p>No action can be maintained against the surety on a bond to dissolve an attachment, if after the bond was given the writ and declaration in the action in which the attachment was made were amended by changing the plaintiffs from two partners doing business under a certain firm name by adding the name of a third partner, the three being alleged to be doing business under the same firm name, and if no previous notice of the amendment was given to the surety as required by R. L. c. 173, § 121. Following Mathews Slate Co. v. Sweeney, 219 Mass. 285.</p>

Contract upon a promissory note for $200 indorsed in blank by the payee for the amount of the note and interest thereon from October 21, 1915. Writ dated January 21, 1916. The defendant’s answer alleged that the note was given to the payee without consideration and that the plaintiff was not a holder in due course. In the Superior Court the case was tried before Hall, J. The evidence is described in the opinion.

<p>Tort under R. L. c. 171, § 2, as amended by St. . 1907, c. 375, by the administrator of the estate of Isabelle C. Fairbanks, late of Swampscott, for causing the death of the plaintiff’s intestate on Labor Day, September 6, 1915, shortly after eleven o’clock in the forenoon on a street called Monument Avenue leading out of Humphrey Street in Swampscott. Writ dated [October 18, 1915.</p> <p>In the Superior Court the case was tried before Hall, J., without a jury. It appeared that the defendant personally was driving a six cylinder Packard car, about fifteen feet long over all, having had about a year’s experience with the Packard car and about two years’ experience in driving motor vehicles; that there was a male companion seated at her side and a chauffeur was in the rear seat; that she was coming from Cambridge and was bound for Gloucester; that she came down Humphrey Street on her right hand side and turned across into Monument Avenue; that the plaintiff’s intestate came from Burrill Street on foot and had entered Monument Avenue for the purpose of crossing to take an approaching street car on Humphrey Street bound for Boston; that she was knocked down and run over by the defendant’s car and, although not instantly killed, was rendered unconscious and died without recovering consciousness at about three o’clock the same afternoon. The evidence in regard to the registration of the defendant’s car is described in the opinion.</p> <p>At the close of all the evidence the plaintiff asked the judge to make the following ruling: “The defendant was driving an illegally registered machine, she was therefore an outlaw on the public highway, and her act in running down- and killing Mrs. Fairbanks constituted the maximum degree of culpability under St. 1907, c. 375.” The judge refused to make this ruling.</p> <p>At the defendant’s request the judge made the following rulings:</p> <p>“ 1. Assuming that the automobile operated by the defendant at the time of the accident was improperly and illegally registered, the fact is immaterial in the determination of the issue raised by the pleadings.</p> <p>“2. If the defendant failed to comply with the provisions of the St. 1909, c. 534 [§ 2, as amended by St. 1912, c. 400,] even though they [her acts] constitute a violation of law, it is not a cause contributing to the accident, but a condition of it, and therefore does not render the defendant liable.</p> <p>"3. The illegal and improper registration of the automobile operated by the defendant at the time of the accident, if indeed such registration was illegal or improper, is no evidence of negligence of the defendant in relation to the injuries and death of the plaintiff’s intestate.</p> <p>“4. The defendant is liable only if she was negligent in the actual operation of the automobile and such negligence caused the injuries to the plaintiff’s intestate.”</p> <p>The judge found for the plaintiff in the sum of $2,250; and the plaintiff, being dissatisfied with the amount of the verdict, alleged exceptions.</p> <p>R. L. c. 171, § 2, as amended by St. 1907, c. 375, is as follows: “If a person or corporation by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars to be assessed with reference to the degree of his or its culpability or of that of his or its agents or servants, to be recovered in an action of tort, commenced within two years after the injury which caused the death, by the executor or administrator of the deceased, one half thereof to the use of the widow and one half to the use of the children of the deceased, or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin.”</p>

Contract by a judgment creditor of one George H. Brown against the surety on a poor debtor recognizance entered into by Brown with the defendant as a surety in the Police Court of Lowell under R. L. c. 168, § 30. , Writ dated January 22, 1916. In the Superior Court the case was heard by Hamilton, J., without a jury. The material facts are stated in the opinion.

Tort for personal injuries alleged to have been sustained by the plaintiff on May 6, 1911, between eleven and twelve o’clock at night, when she was alighting as a passenger from an electric street railway car of the defendant on Boston Avenue near Arlington Street in West Medford, a usual stópping place for cars. Writ dated January 26, 1912.

<p>Tort for personal injuries sustained on the evening of November 11,1906, when the plaintiff was walking across Huntington Avenue in Boston upon a paved cross walk about opposite the Hotel Nottingham between Dartmouth Street and Exeter Street and was struck by an electric street railway car of the defendant that was being operated on the reserved space in the middle of Huntington Avenue. Writ dated January 4, 1907.</p> <p>In the Superior Court the case first was tried before Brown, J., who ordered a verdict for the defendant. Exceptions alleged by the plaintiff were sustained by this court in a decision reported in 214 Mass. 168.</p> <p>The case was tried again before Lawton, J. At the close of the plaintiff’s evidence, which, so far as it differed from the evidence at the first trial, is described in the opinion, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Voluntary Association. Name. Evidence, Presumptions and burden of proof. Agency, Knowledge of limitation of authority. Practice, Civil, Exceptions,. Rulings and instructions.</p> <p>It here was said that “The right to adopt a name for business purposes is universally conceded to be the right of individuals, partnerships and corporations,” and it was held that a like power is possessed by the trustees of a trust or voluntary association created for business purposes.</p> <p>Where the declaration of trust creating a business voluntary association provided, in regard to its governing board, that “All the powers hereunder may be exercised by a majority of said trustees, that is, by three of them, and all deeds or : other instruments executed by such majority shall be as effectual and binding as if executed by all of the trustees ” “ and all persons dealing with said trustees shall look only to the property of the trust for payment of their claims,” and where an agreement in writing [under seal with a contractor, by which the association, called the “B Trust,” agreed to pay him a certain sum of money for the construction of a building to be known as “B Hall,” provided “that the contractor shall look only to the funds and property of the trust for all payments due hereunder and not to the trustees or stockholders of the said B Trust personally,” and the instrument was signed, in behalf of the trustees, “Trustees of the B Trust by R G, Pres. AGE, Treas.” with a seal affixed opposite each name, and where there was evidence of authorization, of recognition, of adoption and of ratification of this contract by the trustees, it was held that it could be found that the signature “Trustees of the B Trust” had been adopted as the name under which the trustees or a majority of them should enter into contracts and execute instruments in furtherance of the business management of the trust and that the contract was duly executed and was a valid contract binding on the association.</p> <p>In the same case it was said that, even if the trustees had attempted and had failed to execute properly such an instrument, which it was within their power to make, they could not be held to have made themselves personally liable contrary to the words and spirit of their undertaking.</p> <p>In an action on the contract above described brought by the contractor against the trustees as individuals in an attempt to hold them personally liable for an unpaid balance due under the contract, it was held, that, if the plaintiff contended that the express provision of the contract against personal liability had been waived by the trustees or had been abrogated otherwise, the burden was upon him to prove the waiver or abrogation.</p> <p>If a contractor, who has constructed a building for a voluntary association governed by a board of five trustees, makes an agreement in regard to extra work with one of the five trustees, knowing that his authority to act for the board is limited, he is bound to ascertain at his peril the extent of such limitation.</p> <p>If the presiding judge at the trial of an action at law states that he will give as an instruction to the jury the substance of a certain ruling requested, and the requesting party excepts to his refusal to make the ruling as requested, and if later the judge gives to the jury the instruction referred to and no objection is made to the manner in which he has dealt with the request, the exception must be treated as waived.</p> <p>No exception lies to the refusal of a presiding judge to instruct the jury as a matter of law on a question depending on conflicting testimony.</p>

<p>Tort in three counts, the first for alleged malicious prosecution, the second for alleged extortion and the malicious institution and prosecution of a civil action and the third for alleged conspiracy to harass the plaintiff and extort money from him by criminal prosecutions and civil actions. Writ dated November 10, 1911.</p> <p>In the Superior Court the case was tried before Hardy, J. The course of the trial is described in the opinion. The judge ordered a verdict for the defendants on all three counts of the plaintiff’s declaration; and the plaintiff alleged exceptions. The plaintiff in his brief expressly waived all exceptions applying to the second and third counts.</p>

<p> Bills and Notes. Negotiable Instruments Act. </p> <p>Under the provisions of the negotiable instruments act contained in R. L. c. 73, § 121, cl. 1, that a notice of the dishonor of a promissory note, if sent by mail, “must be deposited in the post office in time to go by mail the day following the day of dishonor, or if there is no mail at a convenient hour on that day, by the next mail thereafter,” the mailing of such a notice in Boston to an indorser in Somerville, there being twelve mails daily between the two cities but only four deliveries daily in Somerville, at 8.30 p. M. on the next business day after the day of dishonor, does not in itself show that the notice left Boston that night, and, in an action on the note against such indorser, if the plaintiff shows only such a mailing of the notice, it cannot be ruled as matter of law that the plaintiff has sustained the burden resting on him to show that the notice to the defendant was “deposited in the post office in time to go by mail” on the required day.</p>

<p>Tort by the executor of the will of John H. Mansfield, late of Winchester, to recover for the death and conscious suffering of the plaintiff’s testator alleged to have been caused by injuries sustained by him on August 15, 1914, when he was a passenger on an open electric street railway car operated by the defendant. Writ dated December 9, 1914.</p> <p>In the Superior Court the case was tried before Stevens, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Two actions of contract, each to recover a balance alleged to be due on a judgment recovered on March 3,1913, in the Superior Court, where the original cases were tried together, the judgments being respectively for consequential and for direct damages for personal injuries sustained by the plaintiff in the second case by reason of the negligence of the defendant’s agent in operating a motor car. Writs dated July 29, 1914.</p> <p>In the Superior Court the cases were tried together before Hardy, J., without a jury. The facts shown by the evidence and found by the judge are stated in the opinion. The contract between the parties there referred to was as follows:</p> <p>“Memorandum of agreement made and executed in duplicate this twenty-fifth day of April, 1913.</p> <p>“Whereas in the suits entitled Lait vs. Sears, judgment has been heretofore entered against the defendant Sears in the sum of Seventy-one hundred ($7100.) Dollars, in the Superior Court for the County of Suffolk; and</p> <p>“Whereas the said defendant Sears was insured in the London Accident and Guaranty Insurance Company to the extent of Five Thousand ($5000.) Dollars for injury to any one person; said Company under the terms of its policy having undertaken and conducted the defense of said suits in said Superior Court by its counsel; and</p> <p>“Whereas the said Insurance Company denies its liability upon its said policy to indemnify the said defendant to the extent of the said Five Thousand ($5000.) Dollars, by reason of an alleged breach of a material condition contained in said policy; and</p> <p>“Whereas the said defendant Sears is unable to satisfy the said judgment in full;</p> <p>"Now it is agreed by and between the parties to said suits, by their respective counsel, that said suits shall be settled and the said defendant Sears released from all liability by reason of said suits and the judgments therein, in the following manner and under the following terms and conditions: .</p> <p>“The said Sears shall on or before Monday, April 28th, 1913, pay to the said plaintiffs or their attorney the sum of Five thousand ($5000.) Dollars in money, which sum the defendants [plaintiffs] agree to accept in satisfaction and discharge of said judgment except as hereinafter provided. Said Sears shall thereupon institute proper proceedings to collect from said Insurance Company the sum of Five thousand ($5000.) Dollars under the terms of said policy, and if the said Sears shall collect from the said Insurance -Company the said sum of Five thousand ($5000.) Dollars, then-and in that event only he shall make his promissory note payable to the defendants [plaintiffs], or either of them, in the amount of Fifteen hundred ($1500.) Dollars, for the period of one year, from the date of the collection of said $5000, without interest and without security or indorsement, and deliver the same to the defendants [plaintiffs] or their attorney.</p> <p>“Signed at Boston, Mass., this twenty-fifth day of April, 1913.</p> <p>Hyman Lait</p> <p>Israel Lait</p> <p>by their Atty.,</p> <p>H. H. Patten</p> <p>Alfred Sears</p> <p>by his attys.,</p> <p>Bates, Nay & Abbott.”</p> <p>Mr. H. H. Patten, the first witness called by the defendant, testified that he was the attorney for the plaintiffs and had authority to make the agreement printed above. He testified that on April 26, 1913, he received from the defendant the sum of $5,000, and signed the following receipt:</p> <p>“Boston, April 26, 1913.</p> <p>“Received of Alfred Sears the sum of Five thousand ($5000) Dollars in money pursuant to the agreement of April-25th, 1913, which amount is accepted in satisfaction and discharge of executions in the suits of Lait v. Sears, which executions were issued out of the Superior Court for the County of Suffolk, dated March 4, 1913.</p> <p>H. H. Patten,</p> <p>Attorney for Hyman Lait and Israel Lait.”</p> <p>■ At the same time Mr. Patten indorsed each execution “fully satisfied,” and signed the indorsement “H. H. Patten, Attorney for the Plaintiff.” The executions bearing these indorsements were returned to court and were admitted in evidence at the trial.</p> <p>The defendant asked the' judge to make, among others, the following rulings, these requests being either identical or substantially the same in both cases:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“ 2. Upon all the evidence the verdict must be for the defendant.</p> <p>“3. Full satisfaction of an execution issued upon the judgment referred to in the plaintiff’s declaration is full satisfaction of said judgment.</p> <p>"4. The return of an execution bearing the endorsement 'fully satisfied’ by the plaintiff’s attorney of record is conclusive evidence of the satisfaction of the judgment.”</p> <p>“8. The plaintiff cannot maintain this action unless the entry 'execution returned fully satisfied’ on the docket of this court in the action numbered 68937 is vacated by the court.</p> <p>“9. The docket entry ‘ execution returned fully satisfied,’ has the effect of a judgment so far as collateral attack is concerned.”</p> <p>“11. The agreement of April 25, 1913, did not require the defendant to bring suit against the insurance company.</p> <p>“12. Entering into negotiations for collection of the claim against the insurance company, was 'instituting proper proceedings to collect’ within the meaning of said agreement.</p> <p>“ 13. Unless the defendant was entitled to recover five thousand dollars ($5000) from the insurance company, his settlement for four thousand five hundred dollars ($4500) was not a breach of the agreement of April 25, 1913.</p> <p>“14. The defendant was not entitled to recover from the insur anee company under the terms of the policy.</p> <p>“ 15. If the defendant was guilty of a breach of the agreement of April 25, 1913, the plaintiff’s remedy is by action upon that agreement.”</p> <p>The judge refused to make any of the rulings quoted above, and the defendant excepted.</p> <p>The judge ruled “that, if there was any satisfaction attempted on this judgment, it was a conditional satisfaction which required that the defendant should perform certain conditions imposed</p> <p>upon him.” He found "that the condition was not performed but was still in force, and that the balance of the judgment was still in force.” The defendant excepted to this ruling.</p> <p>The judge found for the plaintiff in the first case in the sum of $1,281.46, and for the plaintiff in the second case in the sum of $1,210.46 and reported for determination by this court the questions of law raised by the exceptions taken by the defendant, stating that he did so because the defendant’s failure properly to notify the plaintiffs of the filing of his exceptions was due to accident or mistake. If the rulings of the judge were correct, judgments were to be entered for the plaintiffs upon the findings. Otherwise, judgments were to be entered for the defendant, or the cases were to be remanded to the Superior Court for a new trial as law and justice might require.</p>

Petition, filed on November 10,1915, for a writ of review to set aside a judgment against the petitioners in the Municipal Court of the City of Boston, entered on November 8, 1915. On November 29, 1915, the petition was granted upon the filing of a bond for $500, and on December 9, 1915, such a bond was filed and approved.

<p>Negligence, Employer’s liability.</p> <p>If a proprietor of greenhouses and of certain buildings, through his servants or agents, orders a workman who has been in his employ for seven or eight years as a laborer, as a worker about a greenhouse and as a handy man, to assist in putting into place one of the heavy sections of the roof of a barn that has been moved from another place, and if such workman in obedience to the order of his employer’s superintendent takes a position on a wooden joist three by five inches and at a given signal, when other men are to push from below, he is told to “pull from the top,” and in doing this he is thrown backward and is injured, and if this is not a proper method of placing a roof upon such a building and it does not appear that the injured workman ever had been called upon to do this sort of work before or that anything was said about such work when he was employed, in an action brought by him against his employer for his injuries thus sustained, the question whether his injuries were caused by the negligence of some of those for whom the defendant was responsible is for the jury.</p> <p>The plaintiff in the action described above having received his injuries after the workmen’s compensation act took effect and the defendant not having been a subscriber under the act, the defendant under St. 1911, c. 751, Part I, § 1, could not set up the defence that the plaintiff was negligent or that the injury was caused by the negligence of a fellow employee or that the plaintiff had assumed the risk of the injury.</p> <p>In the same case it was pointed out that the plaintiff’s injury did not arise from a danger which he was employed to incur so that the defendant owed him no duty to protect him from it, as in Ashton v. Boston & Maine Railroad, 222 Mass. 65.</p>

<p>Workmen’s Compensation Act, Loss of vision, Notice. Words, “As soon as practicable.”</p> <p>In a claim under the workmen’s compensation act a finding of the Industrial Accident Board, that the employee was totally incapacitated by the loss of vision in one of his eyes, is warranted by evidence that he previously had lost the sight of his other eye and by medical testimony that “for practical work [he] has no sight; he can do anything that a blind man can do.” Following Braconnier’a Case, 223 Mass. 273.</p> <p>In a claim under the workmen’s compensation act a finding of the Industrial Accident Board, that the employee’s normal vision in Ms injured eye was reduced to one tenth, so that he is entitled to special compensation under St. 1914, c. 708, § 6 (6), is warranted by the testimony of a medical expert, in answer to the question, “To what per cent is the sight of Ms eye reduced?”, “I could not reckon it in per cent; it would be so small ■— less than one per cent.”</p> <p>In a claim under the workmen’s compensation act for compensation by an employee, who already had lost the sight of one eye, for loss of vision in Ms remaining eye, it appeared that the immediate effect of the injury to the employee was a wrench in the back of Ms neck and a pain in Ms eye, that he was in bed for five days suffering great pain “through Ms head,” that then the pain stopped and he worked for three days, that the next week he worked for five days and that “tMs last week Ms eye seemed to be getting worse,” that the next day was Sunday</p> <p>• and that he went to church and could not see who the priest was and he knew he "would have to quit work,” that five days later, wMch was twenty days after his injury, he gave notice in writing of his injury, that on Monday of the fifth week after Ms injury he went to the hospital and first felt Ms sight was impaired, that he could not see or read any more, and that “the sight did not go altogether until the Friday of tMs fifth week.” The Industrial Accident Board made a finding “that the notice given, under the circumstances as they appear in tins case, complies with the statutory requirement that such notice be given as soon as practicable after the occurrence of the injury.” Held, that on the facts stated above tins finding was warranted.</p> <p>In the provision in regard to giving notice of an injury for which compensation is to be claimed under the workmen’s compensation act, the words "as soon as practicable after the happening thereof,” as used in St. 1911, c. 751, Part II, § 15, import action according to the circumstances.</p>

<p>Contract on a guaranty in writing which is quoted in the opinion. Writ in the Municipal Court of the City of Boston dated January 27, 1916.</p> <p>The findings of the judge of the Municipal Court are stated in the opinion. The judge found for the defendants, and at. the request of the plaintiff reported the case to the Appellate Division.</p> <p>The Appellate Division made an order that the report be dismissed; and the plaintiff appealed.</p>

<p>Contract by the administrator of the estate of Emily A. Stevens, late of Chelsea, who brought the action for the benefit and in behalf of Frederick A. Henry of Springfield, to recover the amount of $1,304.88 deposited in the defendant savings bank and represented by a pass book which was alleged to have been given to said Frederick A. Henry by the plaintiff’s intestate. Writ in the Municipal Court of the City of Boston dated April 21, 1916.</p> <p>In the Municipal Court the trial judge ruled that the facts found by him, which are stated in the opinion, made out a prima facie case for the donee and that he was entitled to recover the amount admitted. He found for the plaintiff and, at the request of the defendant, reported the case to the Appellate Division.</p> <p>The Appellate Division made an order that the report be dismissed; and the defendant appealed.</p>

<p>Negligence, In operating motor vehicle, Contributory. Evidence, Opinion.</p> <p>If the owner of a motor car is driving it in broad daylight on a straight and level highway when a man on foot is crossing the highway diagonally more than one hundred and fifty-five feet ahead of him, and such owner proceeds to drive his car at the rate of twenty-five or thirty miles an hour and gives no warning of his approach until he is only five feet away from the traveller on foot, when he blows his horn, and the forward part of the right hand side of his car strikes the traveller with such momentum that he is rendered unconscious for nine days and delirious for several weeks, in an action against the car owner by the traveller thus injured there is evidence warranting the jury in finding that the defendant was violating St. 1909, c. 534, § 14, as amended by St. 1910, c. 605, § 5, and was negligent otherwise.</p> <p>In an action for personal injuries sustained after the passage of St. 1914, c. 553, by reason of being run down by a motor car operated by the defendant when the plaintiff was on foot and was crossing diagonally a straight and level highway, having left the side of the road where there was no sidewalk and when the road in front of him was unobstructed and his course was in plain view from any vehicle that might enter the highway, if there is no evidence that the plaintiff looked behind him for approaching vehicles, this does not show conclusively that he was negligent, and such a plaintiff would have been entitled to go to the jury on the question of his due care, even before the passage of the statute of 1914, which creates a presumption that he was in the exercise of due care and requires the submission of that issue to the jury.</p> <p>A witness, not an expert, who is nineteen years of age and has travelled in motor cars "Many times. Probably a hundred,” and who was standing at the side of a highway looking at a motor car that passed him going at a high rate of speed, properly may be allowed to be asked the question, “ How fast do you think this car was going in miles when it passed you? ” and to answer, “About twenty-five or thirty miles an hour.”</p>

<p>Workmen’s Compensation Act, Appeal from decree. Equity Pleading and Practice, Appeal, Exceptions.</p> <p>The procedure under the workmen’s compensation act is in accordance with that in proceedings in equity. Following Gould’s Case, 215 Mass. 480.</p> <p>Under R. L. c. 159, § 19, as amended by St. 1911, c. 284, § 1, an appeal from a decree made by a judge of the Superior Court upon a claim under the workmen’s compensation act must be taken within twenty days.</p> <p>Where upon an appeal from a decree made by a judge of the Superior Court upon a claim under the workmen’s compensation act, which was attempted to be taken three days after the expiration of the twenty days allowed for the taking of such an appeal, there were indorsed the words, “Filed by consent and allowed,” it was held that no appeal was taken, because the time for taking an appeal prescribed by the statute cannot be extended by consent of the parties or by the judge from whose decree the appeal was taken, the only way by which such an appeal can be taken after the expiration of twenty days being by leave of the full court granted upon a petition filed within one year after the entry of the decree under R. L. c. 159, § 28.</p> <p>Alleged exceptions to the refusal of a judge of the Superior Court to grant a motion to dismiss an appeal because it was not entered seasonably in the full court after being claimed cannot be considered by this court, if the alleged appeal was not taken within twenty days after the entry of the decree attempted to be appealed from, and in such a case the exceptions will be dismissed, there being nothing before this court to which they can apply.</p>

<p>Three actions of tort, all against a corporation having a usual place of business in Boston, the first and second for personal injuries and damage to property and the third for personal injuries, all alleged to have been caused by the negligence of the defendant in carelessly and without any warning to travellers depositing "oil, tarvia or other dangerous substance” on a public highway in the town of Kittery in the State of Maine known as the State Road on May 21, 1915, whereby the motor car in which the plaintiffs were travelling was caused to slip and skid and to run off the highway and upset. Writs dated July 1,1915.</p> <p>In the Superior Court the cases were tried together before Sanderson, J. The evidence is described in the opinion. At the close of the evidence, the defendant asked the judge, in each of the cases, to rule that upon all the evidence the plaintiff was not entitled to recover and to order a verdict for the defendant. The judge refused to rule or to order verdicts as requested. The jury returned verdicts for the plaintiffs, for the plaintiff Selma Zegeer in the sum of $100 for personal injuries and in the sum of $50 for damage to property, for the plaintiff Abraham Zegeer in the sum of $150 for personal injuries and in the sum of $250 for damage to property and for the plaintiff Marianna Kummer in the sum of $2,500 for personal injuries. The defendant alleged exceptions.</p>

<p>Mechanic's Lien, On braiding of street railway corporation. Public Service Corporations.</p> <p>Assuming, without decidingit, that the provisions of R. L, c. 197 should be construed as impliedly exempting a street railway company as a public service corporation from the establishment of mechanics’ liens upon its property, yet the exemption should be restricted to such of its property as is essential to the performance of the corporation’s public duties.</p> <p>Where a car barn was constructed by a street railway corporation on land purchased for the purpose half a mile distant from the site of a former car barn of the company that had been destroyed by fire, and where, although the erection of such a new building was reasonable and economical, the corporation could have carried on its business and have maintained its regular schedules by using its other existing car barns or could have erected a new barn on the site of the one destroyed, it cannot be said as matter of law that an auditor was not warranted in finding that the car barn was not essential to the operation of the street railway, and on such finding a mechanic’s lien can be established upon the building.</p>

<p>Petition, filed in the Superior Court on September 17,1915, by the alleged owner as a tenant in common of one undivided half of a parcel of land on Butterfield Street in Lowell against her alleged co-tenant in common for partition.</p> <p>The respondents filed answers.</p> <p>The case was heard by Hamilton, J., who made the following order:</p> <p>“In the above action I find upon due consideration and hearing that, upon the issues raised by the petition and answers, the petitioner is entitled to have partition for one half of the estate as claimed in said petition and do order that partition be made accordingly.”</p> <p>The respondent James A. Hickey appealed.</p> <p>In the brief of the appealing respondent he undertook to found an argument on the provisions of the will of Walter Hickey, late of Lowell, under whom all the parties claimed title, and a copy of this will was printed in his brief which did not appear anywhere in the record.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort, both by a minor by his next friend, for personal injuries sustained by the plaintiff on September 27, 1914, when he was leaning out of an open window in the tenement let to his father in the building numbered 155 on Leverett Street in Boston, by being struck on the left side of his head by a piece of metal that had become detached from some part of the building, the first action being against the owner of the building and the second action against the tenant of the roof of the building. Writs dated respectively November 18, 1914, and August 2, 1915.</p> <p>In the Superior Court the cases were tried together before Fessenden, J. The evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant in each, action, and at the request of all the parties reported the cases for determination by this court, with the stipulation that, if the ordering of the verdicts was right, final judgment should be entered for each defendant, and that, if one case should have been submitted to the jury, and the other not, then final, judgment in the sum of $400 should be entered for the plaintiff in the case which should have been submitted to the jury and final judgment should be entered for the defendant in the other case. If both cases should have been submitted to the jury, then final judgment in the sum of $200 was to be entered for the plaintiff in each case.</p>

Contract for the alleged breach of an oral agreement to open a street or way on land of the defendant adjoining land which the defendant had conveyed to the plaintiff. Writ dated October 14, 1914. The answer contained a general denial and also alleged want of consideration and set up the statute of frauds.

<p>Appeal from a decree of the Probate Court for the county of Middlesex allowing an instrument presented to that court as the will of John A. Stewart, late of Cambridge.</p> <p>The appeal came on to be tried before De Courcy, J., who under R. L. c. 162, § 25, framed the issues of fact quoted in the opinion to be tried before a jury and sent them to the Superior Court for such trial.</p> <p>In the Superior Court the issues were tried before Sisk, J., and a jury. There was evidence of the facts that are stated in the opinion. The appellants asked the judge to make the ruling which is quoted in the opinion. The judge refused to make this ruling and submitted the issues to the jury, who returned answers sustaining the will. The appellants alleged exceptions.</p>

Contract on a policy of liability insurance issued by the defendant to the plaintiff. Writ dated May 21, 1913.

<p>Bill in equity, filed in the Superior Court originally on November 24,1915, and amended by the filing of a substituted bill by leave of court on March 10,1916, praying for an order setting aside a partnership agreement into which the plaintiff was induced to enter by the fraudulent representations and acts of the defendants, for an accounting, for damages caused by the fraudulent acts of the defendants and for further relief.</p> <p>The proceedings in the case are described in the opinion, where also the material facts that were found by the master are stated.</p> <p>The case was heard by Fox, J., who made an interlocutory decree overruling the defendants’ exceptions to the master’s second report and on the same day made the following final decree:</p> <p>“This cause came on to be heard at this sitting and was argued by counsel for the plaintiff and by counsel for the defendants, and, upon consideration thereof, it is adjudged and decreed that the plaintiff was induced to enter into the partnership agreement . . . by the fraudulent acts and false and fraudulent representations of the defendants and each of them, and said partnership agreement is null and void and of no effect as between the plaintiff and the defendants and each of them.</p> <p>“It is further adjudged and decreed that the plaintiff was induced by the fraudulent acts and false and fraudulent representations of the defendants and each of them to purchase the furniture, fixtures and a portion of the stock in trade and good will and a portion of the stock in trade connected with the business carried on by the defendant, Harry Lewis at No. 252 Shawmut Avenue, Boston, and that such purchase and sale and the bill of sale whereby said property, except said stock in trade, purported to be conveyed . . . are null and void and of no effect as between the plaintiff and the defendants and each of them.</p> <p>“It is further ordered, adjudged and decreed that the defendants, and each of them, and their respective attorneys, counsellors and agents be, and they hereby are, perpetually enjoined and restrained from instituting or prosecuting, and from causing, persuading or inducing any other person or persons to institute or prosecute, any action at law or suit in equity against the plaintiff as a partner of the defendant, Morris Lewis, including the action which the defendant Harry Lewis brought against the plaintiff and the defendant, Morris Lewis as copartners and which is now pending.</p> <p>“It is further ordered, adjudged and decreed that the defendants jointly and severally hold the plaintiff harmless from, and indemnify him against, any and all claims, demands, actions at law and suits in equity against the plaintiff as a partner of the defendant, Morris Lewis, if any there may be, which are based upon or arise out of the lease given by Popkin to the defendant, Harry Lewis and assigned by said Harry Lewis to the plaintiff and the defendant, Morris Lewis, or which are based upon or arise out of the merchandise bills of said partnership amounting to $114.43.</p> <p>“It is further ordered, adjudged and decreed that, upon the execution and delivery by the plaintiff to the defendant, Morris Lewis, of an agreement, to be approved by the Court, whereby the plaintiff shall agree to hold said Morris Lewis harmless from, and to indemnify him against, liability upon the note for $100.00 given by said Morris Lewis to the plaintiff, the defendants jointly and severally pay to the plaintiff the sum of $604.46, with interest thereon from the date of the filing of the bill of complaint, to wit: November 25, 1915, and with costs of this suit taxed by the Clerk in the sum of eighty-two and 03/100 (82.03) dollars.” .</p> <p>The defendants appealed.</p> <p>The case was submitted on briefs.</p>

<p>Contract by the administrator of the estate of Edna G. Heath-cote, late of Newton, for $1,300 alleged to have been lent to the defendant by the plaintiff’s intestate. Writ dated May 6, 1915.</p> <p>In the Superior Court the case was tried before Fessenden, J. The defendant objected to certain statements of the plaintiff’s intestate, offered in evidence by the plaintiff. In regard to these the judge ruled, “I admit any statements that the deceased made that the defendant borrowed money of her, but as to what her wishes were at the time, I exclude it.” He also ruled, “I will admit that part where the deceased stated that the defendant borrowed thirteen hundred dollars of her.”</p> <p>The following evidence was admitted by the judge subject to the defendant’s exception:</p> <p>“Q. Did Mrs. Heathcote tell you, say to you that she had lent Mr. Eldridge some money? A. She did. — Q. Did she say how much? A. I don’t remember. — Q. When did she say that happened, do you know? A. When they were in New York. — Q. Did she say what it was about? A. Yes. — Q. What did she say it was about? A. She lent him the money to buy an automobile to demonstrate a self-starter.”</p> <p>The defendant himself was the only witness in his behalf. His testimony tended to show that the transaction between himself and the deceased was not a loan but was a sale of thirteen shares of stock in a corporation having a total par value of $1,300, with an agreement on the defendant’s part to pay to the deceased a bonus of $1,300 in cash if one Stott carried out an agreement to which the defendant was a party and of which the deceased had knowledge, whereby Stott was to sell other stock of the same corporation and pay upwards of $30,000 of the proceeds to the defendant on or before February 1, 1912. The agreement with Stott, which was in writing, was put in evidence by the defendant, and there was evidence that Stott had never carried it out.</p> <p>The case was submitted to the jury under instructions to which no exceptions were taken by either side. The part of the judge’s charge which related to the admission of the evidence in question was as follows:</p> <p>“The Legislature, quite a number of years ago, passed a law that in cases where a person died, his declarations made before the suit, before the controversy arose, his declarations in his lifetime with reference to those made of his own knowledge might be received in evidence, and so we have that here, that principle applies here.</p> <p>“Mrs. Heathcote is dead, and they offered for your consideration statements that she made with reference to this, statements, I have admitted them, that she could, if feeling they were made of her own knowledge, that she could have made here on the witness stand, if she had been here. For instance, the statement she lent this man, the defendant, the money. The statement of a person who is dead, it is evidence under the law, evidence for your consideration, the same as if she were here testifying in court. Now, on the other hand, there is this much to say in reference to that. The defendant cannot cross-examine a deceased person, the only cross-examination that the defendant can give is to the witness who tells what the deceased person told him or her, and to that extent you have evidence which is not the original statement itself, has not gone through the ordeal or test of cross-examination. This is all for your consideration. It is for you to say whether on the whole that evidence commends itself to you, and helps you any in the determination of the issue.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,604.41; and the defendant alleged exceptions.</p> <p>R. L. c. 175, § 66, is as follows: “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.”</p>

Tort for personal injuries sustained on January 18, 1912, when the plaintiff, who had a contract with the United States for carrying the mails between the post office in Walpole and the railroad station of the defendant in that town, was walking along the platform of that railroad station in the course of his duty and was struck by a baggage truck that had been left standing too near the track of the defendant’s railroad, so that the arriving train caused it to strike and…

<p>Negligence, Contributory, In operating motor car.</p> <p>In an action for personal injuries sustained after the passage of St. 1914, c. 553, by being run into by a motor car owned and driven by the defendant when the plaintiff was crossing a highway on foot, where the plaintiff has testified that before he started to cross the street he looked up the street in the direction from which the defendant’s car came and saw nothing, the plaintiff is entitled to have the question whether he was in the exercise of due care submitted to the jury.</p> <p>In an action for personal injuries sustained by being run into by a motor car owned and driven by the defendant, if the defendant testifies that he saw the plaintiff step off the sidewalk to cross the street ten or twelve feet ahead of the defendant’s car and another witness for the defendant testifies that the distance was from twenty-five to thirty feet and there is evidence on which it can be found that the defendant, notwithstanding this knowledge of the situation and with the plaintiff in plain sight, neither gave any warning of the car’s approach nor reduced its speed but kept on with such momentum that when the plaintiff was struck by the car he was carried on its front for about fifty feet before it came to a stop, the question of the defendant’s negligence is for the jury.</p>

<p>Tort for alleged false and fraudulent representations in regard to the value of the business of a restaurant at 65 Merrimac Street in Boston, as described in the opinion, whereby the plaintiffs were induced to pay the defendant for the fixtures and good will of the restaurant the sum of $325. Writ dated August 1, 1914.</p> <p>In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make or give, among others, the following rulings or instructions:</p> <p>“1. On all the evidence the jury must find for the defendant.”</p> <p>“3. In order for the plaintiffs to recover under their allegations concerning misrepresentations about the business, it is necessary for them to show that the defendant sold or purported to sell the business to them.</p> <p>"4. There is no evidence that is competent to vary, alter or control the terms of sale as contained in the bill of sale.</p> <p>“ 5. The good will or business itself did not pass under the bill of sale.</p> <p>“6. The mortgagee under a chattel mortgage is ‘the lawful owner’ of the chattels covered by the mortgage.</p> <p>“7. A mortgagor under a chattel mortgage can legally release his equity of redemption to the mortgagee by parole and without new consideration, and it is evidence of such a release if the mortgagor after the debt is due states to the mortgagee that he is unable to pay the same and orally delivers up to the mortgagee possession of the property covered by the mortgage.</p> <p>“8. A false statement as to future earnings and profits made at the time of sale, upon which the vendee relies in purchasing, is not ground for an action of deceit.</p> <p>“ 9. If the mortgagor Schurman delivered possession of the chattels covered by the mortgage to the mortgagee or her agent Sullivan, stating at that time to Sullivan that he was unable to pay the mortgage note and that Sullivan could have the property, and the latter relying upon this delivery of possession, assigned the mortgage to the defendant Pierce, the mortgagor Schurman was thereby estopped to redeem, and the defendant Pierce thereupon became sole owner of the property free from any incumbrance.</p> <p>“10. If there was a breach of the covenant against incumbrances, the plaintiffs can recover only nominal damages for that breach, unless they have been disturbed in their possession by the incumbrancer, or have been put to expense to remove the incumbrance.”</p> <p>The judge, at the close of his charge, stated that he did not give the first of these rulings or instructions, that he thought he had given the third, fourth and fifth, that he had not given the sixth, that he had given the second, seventh, eighth and ninth, and had not given the tenth, and that he understood he had given the eleventh in substance. The defendant excepted to the failure to give the third, fourth and fifth, seventh, eighth and ninth ruling? in substance, expressly contending that the charge did not cover them, and to the refusal to give the sixth and tenth rulings or instructions. The dealing of the judge with the various requests is described in the opinion.</p> <p>The jury returned a verdict for the plaintiffs in the sum of $375; and the defendant alleged exceptions.</p>

<p>Tort, by the administrator of the estate of William Roy Cavanaugh, who when he died was a boy eight years of age, for causing his conscious suffering and his death on September 16,1914, from an injury received on June 24, 1914, by the falling upon him of a heavy iron grating that was leaning against the wall of a passageway belonging to and maintained by the defendants, leading from West Concord Street in Boston to an area or yard that was back of a number of houses belonging to the defendants and occupied by their tenants. Writ dated December 10, 1914.</p> <p>In the Superior Court the case was tried before Chase, J., who at the close of the evidence, the substance of which is described in the opinion, ordered a verdict for the defendants and by agreement of the parties reported the case for determination by this court. If the case should have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $2,500, exclusive of costs. If the ordering of the verdict by the judge was right, final judgment was to be entered for the defendants.</p>

<p>Contract or tort, the first count in contract for a breach of implied warranty, and the second count in tort for false and fraudulent representations made by the defendant, whereby the plaintiff was induced to purchase from the defendant certain automobile tires, as described in the opinion, which were of poor material and badly made. Writ dated March 19, 1914.</p> <p>In the Superior Court the case was tried before King, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for it. This the judge refused to do and he also refused to rule, at the request of the defendant, that on all the evidence the plaintiff was not entitled to recover. The defendant requested certain other rulings, which were refused by the judge, of which the substance is stated in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,100; and the defendant alleged exceptions.</p>

<p> Conversion. Waiver. </p> <p>In an action for the alleged conversion of a horse belonging to the plaintiff, which he entrusted to the defendant to sell for a certain price, the defendant agreeing to make no charge for board in consideration of the plaintiff’s agreement to let him use the horse in his business, there was evidence that the plaintiff had made many demands for the return of the horse without obtaining it and that at all times he had insisted on such return, and the presiding judge refused to rule at the request of the defendant that there had been a waiver by the plaintiff of his demand for the return of the horse. Held, that the refusal of the judge was right.</p>

Contract against three defendants upon a judgment obtained against them in a previous action. Writ dated June 10, 1916. In the Superior Court the case was tried before Hamilton, J., without a jury. The material facts and the course of proceedings in regard to the defendant Fishbein, who gave a bond with sureties to dissolve an attachment and afterwards was adjudicated a bankrupt, are stated in the opinion.

<p>Tort for personal injuries sustained by being run down from behind by a Ford runabout motor car owned and operated by the defendant at about one o’clock a. m. on September 21, 1914, when the plaintiff, with a companion, was travelling on foot on a highway in South Dartmouth called Dartmouth Street, going toward New Bedford. Writ dated November 12, 1914.</p> <p>In the Superior Court the casé was tried before Dubuque, J. The course of the trial, so far as material to the exceptions, is described in the opinion. The jury returned a verdict for the plaintiff in the sum of $5,000; and the defendant alleged exceptions.</p>

Bill in equity, filed in the Superior Court on October 11, 1915, by a retail grocer and provision dealer having his place of business on Union Street in Lynn against the officers and members of a voluntary association called the Lynn Grocery and Provision Clerks’ Association, to enjoin the defendants from unlawful interference with the plaintiff’s business and with his employees in the manner described in the opinion and to recover damages for the defendants’ unlawful acts.

Bill in equity, filed in the Superior Court on June 24, 1914, for an accounting as stated in the opinion. The defendant demurred to the bill, and his demurrer was overruled by McLaughlin, J. The defendant appealed from the interlocutory decree overruling his demurrer. The defendant then, not waiving his demurrer nor his appeal from the interlocutory decree overruling it, filed a plea in bar setting up the defence of res judicata as stated in the opinion.

Bill in equity, filed in the Superior Court on June 14, 1915, to enforce the specific performance of a contract in writing dated March 20,1915, by which the defendants agreed to sell and convey to Frederick H. Tilton, the plaintiff’s assignor, certain real estate on Merrimack Street in Haverhill for the price of $75,000, of which $1,000 already had been paid, alleging that the real estate in question was deficient in area and subject to certain incumbrances, and that the…

Bill in equity, filed in the Probate Court for the county of Essex on November 24, 1915, by the trustee under the will of Sarah Masury, late of Beverly, for instructions. The Probate Court made a decree that by the true construction of the provisions of the will Fred C. Remmonds, mentioned in the opinion, took, upon the death of the testatrix, a vested interest in the trust fund.

Bill in equity, filed in the Superior Court on May 23 and amended on June 3, 1916. The third paragraph of the bill, referred to in the opinion, was as follows: “3.

Bill in equity, filed in the Superior Court on October 23,1916, to enjoin the city of Lynn from entering the land of the plaintiff at Lynnfield and erecting any poles or other apparatus or structures thereon or doing thereon any act of ownership under an alleged taking on October 13, 1916, of a strip of the plaintiff’s land purporting to have been made under St. 1901, c. 508, for the purpose of constructing and maintaining a power transmission line with poles, wires and…

Bill in equity, filed in the Superior Court on June 10 and amended on September 20, 1916, by the administrators de bonis non with the will annexed of the estate of Peter Donnelly, late of Lynn, against the Levers and Sargent Company, a corporation having a usual place of business in Newburyport and engaged in the manufacture of shoes, to compel the defendant to pay to the plaintiffs a sum of money wrongfully received by the defendant on or about November 1, 1915, in payment…

Faxon, 224 Mass. 145, as described in the opinion. The decree was made by Crosby, J. By it the decree of the Probate Court was modified by disallowing certain items of the guardian’s eighth and final account thereby allowed.

Bill in equity, filed in the Superior Court on August 25 and amended on October 8, 1915, seeking to restrain the defendant from interfering with the plaintiff’s use of the basement or cellar of a building numbered 43 Chelsea Street and 3 Gray Street in the part of Boston called Charlestown, the said building with certain exceptions being let to the plaintiff by the defendant under a lease in writing dated August 27, 1914, also seeking “that damages be assessed in favor of…

<p>Bill in equity, filed in the Superior Court on February 17 and amended on December 30, 1914, against the executor of the will of Mary A. Christie, late of Cambridge, seeking to have the defendant as such executor ordered to pay off and discharge a mortgage on which $600 still was due to the Cambridgeport Savings Bank upon the house and lot numbered 100 on Western Avenue in Cambridge, which belonged to the defendant’s testatrix at the time of her death and was devised by her to the plaintiffs in pursuance of an agreement in writing dated October 29, 1912, to convey the said house and lot to the plaintiffs free from all incumbrances; and</p> <p>A cross bill filed on March 1, 1916, to enforce the payment by the plaintiffs of certain bills alleged to have been incurred for medical attendance and nursing furnished to the defendant’s testatrix and for $30 paid as interest on the mortgage mentioned above.</p> <p>The contract on which the principal suit was founded was as follows:</p> <p>“This agreement made this twenty-ninth day of October, A. D. 1912, by and between Mary A. Christie of Cambridge, Massachusetts, party of the first part, and Elias Richardson and Helen M. Richardson, his wife, of said Cambridge, parties of the second part, witnesseth:</p> <p>“The parties of the second part, in consideration of the sum of three hundred dollars ($300) to them paid by the party of the first part, the receipt of which they hereby acknowledge, and in further consideration of the agreements of the party of the first part herein contained, hereby agree that they will, during the life of the said party of the first part, provide her with suitable and adequate clothing, food, light, heat, shelter, medical attendance, nursing, medicines and other things, reasonably necessary for her personal comfort, and otherwise care for and maintain her in her present home, being the house and premises numbered 100 on Western Avenue in said Cambridge, in accordance with her present methods and standard of living.</p> <p>“The party of the first part in consideration of the agreements of the parties of the second part herein contained, agrees that they, so long as they shall perform their said agreements to her satisfaction, shall have the use, free of rent, of the said house and premises owned by her, she, however, reserving for her exclusive use the front room on the second floor and the chamber now used by her as a sleeping room; they to pay all taxes, water rates, insurance, and other charges connected therewith, and to keep and maintain said premises in as good condition and repair as they now are, reasonable use and wear excepted.</p> <p>"The party of the first part further agrees that she will make a will devising said premises to the parties of the second part in fee simple.</p> <p>“It is expressly understood and agreed, however, that each party hereto reserves the right to terminate this agreement at any time upon notice to the other and upon such termination all obligations of either party shall cease and said devise shall be revoked. “Witness our hands and seals.</p> <p>In presence of Mary A. Christie (Seal)</p> <p>Frank C. Chamberlain Elias Richardson (Seal)</p> <p>witness to all Helen M. Richardson (Seal) ”</p> <p>three signatures.</p> <p>The will of Mary A. Christie was dated October 29, 1912. The testatrix died on August 31, 1913, and her will was allowed by the Probate Court. The defendant was appointed executor and gave bond for the performance of his trust on October 2, 1913. The will contained the following provision:</p> <p>“Second: I give and devise to Elias Richardson and Helen M. Richardson, his wife, of said Cambridge, in fee simple, my house and land numbered 100 on Western Avenue in said Cambridge.”</p> <p>The case was heard by Fox, J. The evidence is described in the opinion. He found that, when the agreement was made and at the death of Mrs. Christie, the house which she agreed to devise to the plaintiffs in fee simple was subject to a mortgage made by her on which there was due $600. He found, if it was material, that the plaintiffs did not know of the existence of that mortgage when they executed the agreement.</p> <p>The judge ruled that by the true meaning of the agreement Mrs. Christie agreed to devise a clear title, and that there was a breach of the agreement in that the property devised by her was subject to the $600 mortgage.</p> <p>The property, 100 Western Avenue, being all the real estate of Mrs. Christie, was inventoried at $3,200 and her personal property at $2,681. This personal property “was sufficient to pay all the debts of the estate and the costs of discharging said mortgage.” •</p> <p>After the appointment of the defendant as executor, he was requested by the plaintiffs to discharge the mortgage, which he refused to do. As the interest fell due upon the mortgage, he was requested to take care of the interest, but he refused to do so; and the plaintiffs paid as interest on the mortgage up to March 1, 1916, the sum of $75.</p> <p>The remaining question was whether the case had been brought prematurely, as it appeared ;that the bill was .brought less than a year after the appointment of the executor. On this the judge ruled that, even if it were conceded that the plaintiffs, by reason of the agreement, had a preferred claim upon the real estate, he could see no ground for holding that they had a preferred claim upon the $600 which the executor must pay out of the personal property in his hands in order to clear the title. The judge ruled that under R. L. c. 141, § 1, the suit was brought prematurely, and therefore should be dismissed.</p> <p>As to the respondent’s cross bill the judge found that the bill of Dr. Marcy for $57 for attendance upon Mrs. Christie during her last illness, which had been paid by the executor, was an obligation which properly rested upon the plaintiffs under their agreement. But, since it appeared that the plaintiffs had paid $75 as interest upon the mortgage since Mrs. Christie’s death, the two claims should be offset.</p> <p>He made an order that both the bill and the cross bill should be. dismissed without costs, and at the request of the plaintiffs reported the case for determination by this court, such decree to be entered as justice and equity might require.</p> <p>R L. c. 141, § 1, is as follows: “An executor or administrator shall not be held to answer to an action by a creditor of the deceased which is commenced within one year after his giving bond for the performance of his trust, unless such action is brought for the recovery of a demand which would not be affected by the insolvency of the estate or, after the estate has been represented insolvent, for the purpose of ascertaining a contested claim.”</p> <p>St. 1914, c. 699, § 1, is as follows: “Section one of chapter one hundred and forty-one of the Revised Laws is hereby amended by striking out the words ‘one year/ in the third line, and inserting in place thereof the words: — six months, — so as to read as follows: Section 1. An executor or administrator shall not be held to answer to an action by a creditor of the deceased which is commenced within six months after his giving bond for the performance of his trust, unless such action is brought for the recovery of a demand which would not be affected by the insolvency of the estate or, after the estate has been represented insolvent, for the purpose of ascertaining a contested claim.”</p> <p>Section 9 of that statute is as follows: “This act shall take effect on the first day of September, nineteen hundred and fourteen, but the provisions thereof shall not apply to the estates of persons who have deceased prior to said date.”</p> <p>In the present case the executor filed his bond on October 2, 1913, and the bill was filed on February 17, 1914, so that the suit would have been brought prematurely, even if the amendment had applied to it.</p> <p>R. L. c. 148, § 1, is as follows: “If a person who has entered into a written agreement for the conveyance of real property dies or is .put' under guardianship before making such conveyance, the Probate Court shall have jurisdiction concurrent with the Supreme Judicial Court and the Superior Court to enforce a specific performance of such agreement, and, upon a petition therefor by any person interested in the conveyance, shall, after notice, if upon the hearing it appears that the deceased, were he living or the ward; were he not under guardianship, would be required to make the conveyance, order the executor or administrator or the' guardian to make the same, which conveyance shall have like force and effect as if made by the person who agreed to convey.”</p>

<p>Two appeals from a decree of the Probate Court for the county of Suffolk allowing in part and disallowing in part the fourth and final account of Victor J. Loring as administrator de bonis non with the will annexed of John C. Frye, late of Boston, one of the appeals being taken by Victor J. Loring, administrator as aforesaid, and the other being taken by Frank W. Wise, administrator de bonis non with the will annexed of George A. Frye.</p> <p>The appeals were referred to a master, who filed a report, and later were heard by De Courcy, J. He denied motions made by Wise, administrator, to strike out a part of the master’s report and to recommit the report to the master. He also made the following order:</p> <p>“In the absence of evidence, the exceptions to the report taken by Loring, administrator, and those taken by Wise, administrator, are to be overruled, with the exception of No. 5 and No. 6 of Wise, administrator, which are sustained.</p> <p>“The accountant is chargeable with the interest actually earned by the funds of the estate deposited in the bank by Loring as administrator.”</p> <p>Afterwards by order of the single justice a final decree was entered in accordance with this order.</p> <p>One of the items of the account stated in the decree was as follows:</p> <p>"5. Interest on bank deposit to July 22, 1914 ' $1,615.78”</p> <p>The decree contained the following orders: “and that the interest received by the accountant on funds of the estate since July 22, 1914, be accounted for in the Probate Court; that the allowance made by the decree of the Probate Court for expenses incurred during the hearings in the Probate Court on the fourth account be affirmed, and the question of the allowance of expenses incurred since said decree be referred to the Probate Court; and that the cause be remanded to the Probate Court with instructions to modify the decree appealed from in accordance with this decree, and for further proceedings.”</p> <p>The exceptions of Wise, administrator, numbered 5 and 6 were founded on his fifth and sixth objections to the master’s report, which were as follows:</p> <p>“5. The contestant objects to the master’s report because the master has failed to charge the accountant with the amount of interest received by the accountant to the time of the filing of the fourth account on funds of the estate of John C. Frye.</p> <p>"6. The contestant objects to the master’s report because the master has failed to find the amount of any interest received on the funds of the estate of John C. Frye subsequently to the filing of the account, although evidence of the amount of interest so received up to December 10, 1915, was before the master, and the master was requested by the contestant to find the amount of such interest, and because the master has failed to charge the accountant with any such interest.”</p> <p>Loring, administrator, and Wise, administrator, both appealed from the decree.</p>

<p>Insurance, Fire. Bankruptcy, Rights of trustee.</p> <p>In order to recover for a loss by fire in an action on a policy of insurance in the Massachusetts standard form, if it appears that no referees were appointed to determine the amount of the loss and that no request to have such referees appointed was made, it is necessary for the plaintiff to show that the amount of the loss was determined by agreement between the defendant and the insured.</p> <p>In an action by a trustee in bankruptcy on a policy of fire insurance issued to his bankrupt in the Massachusetts standard form, where there had been no appointment of referees to determine the amount of the loss and no request for such an appointment, the bankrupt testified that the defendant’s adjuster said to him that he thought the damage to the bankrupt’s property was about $250 and asked, “Who owns this property?” Whereupon the bankrupt, falsely and to prevent attaching creditors from getting the proceeds of the insurance, told the adjuster that his son-in-law owned the property, that the adjuster then said, “he would have to look it up and that he didn’t think he could pay it,” to which the bankrupt replied that it was “ immaterial ” to him, and that then the adjuster went away and the bankrupt never saw him again. Held-, that on this evidence the jury could not have found that an agreement as to the amount of the loss was made between the defendant and the bankrupt, and therefore that a verdict should have been ordered for the defendant.</p>

<p>Will, Fraud and undue influence. Evidence, Presumptions and burden of proof. Practice, Civil, Rulings and instructions, Exceptions: construction of bill of.</p> <p>A person does not execute an instrument as and for his last will according to law unless he knows its contents, and the burden of showing such knowledge is upon the proponent of the will.</p> <p>The presumption that a person signing an instrument in writing knows its contents applies to wills as well as to other documents.</p> <p>Where issues were submitted to a jury in regard to the validity of a will and the first issue was as follows: “Was the instrument offered for probate as the last will of J executed in accordance with the provisions and requirements of law? ” a third issue as follows: “Did J execute the instrument offered for probate with the understanding and purpose at the time of execution that said instrument should be his last will and testament? ” was held to have been superfluous, the first issue being comprehensive enough to include the third and there being no special circumstances which made a separate issue appropriate as to whether the alleged testator knew in substance the contents of the instrument.</p> <p>In the same case the second issue was as follows: “Was the instrument offered for probate as the last will of J procured to be executed by the fraud or undue influence of F practised and exerted upon said J? ” The contestants of the alleged will asked the judge to give to the jury “on the second issue” the following instruction: “On the second issue the court instructs the jury that, while gen- ■ erally a party is presumed to know the contents of an instrument which he signs, if there is evidence which in the opinion of the jury tends to show fraud or imposition practised by F upon J with a view to deceiving J as to the contents of the will, or leading him to believe that its contents were other than what he, J, supposed, then the burden of proof is upon the proponent to satisfy the jury by a fair preponderance of the evidence that J did in fact know the contents of the will and the nature of the provisions therein contained.” The judge refused to give this instruction. Held, that the refusal was right, because the instruction had no application to the second issue in regard to which it was requested and there could be no propriety in giving an instruction restricted to the second issue which could have no bearing on that issue and related solely to the other issues.</p> <p>In the same case the bill of exceptions contained a statement to the effect that the instruction requested as quoted above was not given “in form or substance” and that “ except as above stated the jury were fully and adequately instructed.” Held, that this statement meant that the instruction requested was not given as to the second issue in form or substance and that upon the other issues accurate and sufficient instructions were given.</p>

<p>Assignment. Contract, Novation.</p> <p>Discussion by Rugg, C. J., of the rule that executory contracts involving a relation of personal confidence are not assignable before performance without the consent of the other party to the contract.</p> <p>A contract made by a manufacturer of store furnishings with a retail druggist, who reposed special confidence in his skill and judgment, to design, manufacture and install the fixtures and equipment for the druggist’s store, is not assignable by tile manufacturer without the consent of the druggist.</p> <p>Where a manufacturer, who has made a contract to design, manufacture and install the fixtures and equipment for the store of a druggist, who reposed confidence in his skill, after he partly has performed this contract sells out his business, and his successor, to whom the contract has been assigned, completes its performance without notice to the druggist of the assignment and without any knowledge of it by him, and thereafter the manufacturer absolves the druggist from all obligations to him and the druggist on learning of the assignment agrees to pay the balance of the contract price to the successor and assignee of the manufacturer, this constitutes a novation, and the assignee in his own name can recover the balance of the contract price from the druggist.</p> <p>An oral assignment of a contract with a third person is valid between the assignor and the assignee, but the assignee cannot maintain an action on the contract in his own name without an assignment in writing which under R. L. c. 173, § 4, gives him that right.</p> <p>"Where a manufacturer of store furnishings sold out his business and gave a bill of sale to his successor transferring to him “all . . . bills receivable, and all appurtenances to the business,” and this instrument has been treated by the parties as including a partly performed contract to manufacture and install the fixtures and equipment in a drug store, it can be found to be an assignment in writing of the contract, so that under R. L. c. 173, § 4, the purchaser of the business can maintain an action on the contract in his own name.</p>

<p>Bill in equity, filed in the Superior Court on February 12, 1916, by one of the two sureties on a bond to dissolve an attachment on which the other surety was the defendant McNally, and on which the defendant Craig had obtained a judgment against the defendant McNally but not against the plaintiff, in whose favor judgment was rendered on the ground that the plaintiff’s signature as surety on the bond had been obtained by fraud and misrepresentation on the part of the defendant Craig, praying that the defendant McNally might be restrained from paying any further sum upon the execution taken out by the defendant Craig beyond the amount of one half of the judgment already paid by him and for further relief. The defendant Craig demurred to the bill.</p> <p>The case was heard upon the demurrer, by Fox, J., who was of opinion that the demurrer should be sustained on the ground that on the allegations of the bill, which are stated in the opinion, the plaintiff was under no obligation to contribute, and with the consent of the parties the judge reported the case for determination by this court. If the demurrer should be sustained, the bill was to be dismissed; otherwise, the defendants were to have leave to answer.</p>

<p>Attachment, Dissolution. Judgment, Entry nunc pro tune, Of Probate Court. Executor and Administrator. Probate Court.</p> <p>The provision of R. L. c. 167, § 112, that "An attachment of real or personal property shall be dissolved if the debtor dies before it is taken or seized on execution and administration of his estate is granted in this Commonwealth upon an application therefor made within one year after his decease,” applies to cases where land that had been attached was sold by the owner after the attachment and before his death, and where the attachment, the alienation and the death of the grantor all occurred before the enactment of St. 1913, c. 305.</p> <p>The attempted entry of a judgment nunc pro tune cannot operate to revive an attachment that was dissolved under R. L. c. 167, § 112, by the death of the defendant about five and a half years before such entry.</p> <p>Assuming that a total lack of assets on the part of an intestate will make void the appointment of an administrator of his estate, where this point is directly in issue and the fact is proved, yet under R. L. c. 162, § 2, a decree of the Probate Court appointing an administrator cannot be attacked collaterally on such a ground.</p>

<p>Four actions of tort, the first three respectively by two guests and a daughter of Genevieve Curtis, the wife of Nelson Curtis, and the fourth by Nelson Curtis, as the administrator of his wife’s estate, the first three for personal injuries and the fourth for causing conscious suffering and death by alleged negligence of the defendant’s servants and agents in running a street railway car of the defendant against a limousine motor car belonging to Nelson Curtis, and driven by his chauffeur, containing the four persons injured or killed. Writs dated April 15, 16, 1915.</p> <p>In the Superior Court the cases were tried together before Bell, J. The essential facts are stated in the opinion, where also the material instructions of the judge are stated. The portions of the instructions in regard to the relative rights of vehicles on a highway, referred to in the opinion as being correct and in accordance with Carraher v. Boston & Northern Street Railway, 198 Mass. 549, 552, were as follows: “Ordinarily where two men are driving vehicles upon the street, the one who, pursuing his course and not increasing his rate of speed or changing his direction, would naturally reach an intersecting point first, would naturally have the right of way, and the one who, not changing his rate of speed or his direction, would naturally reach a point last ought to give way to the rights of the one who would reach there first,” and “‘when the motorman of a car sees a’ vehicle ‘ahead which is being driven in a straight line’ toward the track upon which he is operating his car, ‘so that if both keep on a collision will ensue, it is the duty of the motorman to stop his car if he sees that the driver of the’ vehicle 'is going on, even if the driver ought not to go on.’”</p> <p>The jury returned a verdict for the plaintiff in each case, in the case of Mary A. Bullard in the sum of $4,000, in the case of Jane W. Bullard in the sum of $500, in the case of Frances Curtis in the sum of $6,500, and in the case of Nelson Curtis, administrator, in the sum of $6,000 for the death of the intestate and in the sum of $3,000 for conscious suffering, which last named sum afterwards was reduced by order of the judge to $1,500. The defendant alleged exceptions, which raised the questions that are considered in the opinion.</p>

<p>Petition filed in the Superior Court on April 3, 1916, under St. 1909, c. 490, Part I, § 77, by the trustees under the will of George H. Morrill, late of Norwood, appealing from the decision of the assessors of the town of Westwood refusing to abate a tax assessed to the petitioners on certain bonds registered by the tax commissioner on payment of the proper fee by the petitioners under the provisions of St. 1914, c. 761.</p> <p>The respondent demurred to the petition, assigning the following reasons:</p> <p>“1. That it is irrelevant and immaterial that the petitioners filed with the tax commissioner a list of bonds owned by them as trustees and registerable under the provisions of St. 1914, c. 761, of this Commonwealth and that the bonds were registered and a fee paid as alleged in the petition, as such registration does not create any exemption from taxation and hence does not give any cause for an abatement of a tax otherwise legally assessed.</p> <p>“2. That St. 1914, c. 761, of this Commonwealth so far as the same affects the petition is unconstitutional, illegal and void.</p> <p>“3. That the petitioners’ right of abatement as alleged is based upon St. 1914, c. 761, of this Commonwealth and hence the petition does not state any valid cause for an abatement of the tax.”</p> <p>The case came on to be heard upon the respondent’s demurrer before Raymond, J., who made an order sustaining the demurrer, and at the request of the parties, being of the opinion that the question raised by the demurrer ought to be determined by this court, reported the case for such determination.</p> <p>St. 1914, c. 761, which was approved on July 7, 1914, is entitled “An Act to provide for payment of a fee upon presentation of certain bonds for registration,” and is as follows:</p> <p>“Section 1. A bond secured by mortgage on tangible property situated within or without the Commonwealth which is subject to taxation wherever situated and which is there actually taxed shall be exempt from taxation within the Commonwealth, if the fact of the taxation of such property is determined by the tax commissioner and the bond is registered as hereinafter provided.</p> <p>“Section 2. The holder of any such bond may present the same to the tax commissioner with a statement in such form as the tax commissioner shall require, describing the mortgage securing the same and the property covered by the mortgage, together with a fee at the rate of thirty cents for each hundred dollars of the par value of the bond. If the tax commissioner finds that the said bond is secured by mortgage upon property which is subject to taxation and which has actually been taxed during the year prior to such statement, he shall register the bond as exempt from taxation for one year from the date of such registration and shall affix to the bond a certificate to that effect, and such bond shall not be taxed during the said year. Any such bond shall be exempt from taxation in any succeeding year upon registration on the same terms and conditions as above specified.</p> <p>"Section 3. One half of the fees for registration of bonds as herein provided shall be distributed, credited and paid to the several cities and towns in which, from the said statements or other evidence, it appears that such holders of bonds resided on the dates of said statements. If such bonds are held by co-partners, guardians, executors, administrators or trustees, the proportion of fees corresponding to the amount of bonds so held shall be credited and paid to the cities and towns where the bonds would have been taxed under the provisions of clauses Fourth, Fifth, Sixth and Seventh of section twenty-three, and of section twenty-seven, of Part I of chapter four hundred and ninety of the acts of thé year nineteen hundred and nine and acts in amendment thereof. Nothing in this act shall be construed as affecting the provisions of sections sixteen, seventeen and eighteen of Part I of said chapter four hundred and ninety, and acts in amendment thereof, relative to the taxation of mortgages on property within the Commonwealth.”</p> <p>Article 44 of the Amendments to the Constitution was adopted on November 2,1915, and is as follows:</p> <p>“Full power and authority are hereby given and granted to the General Court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the Commonwealth upon incomes derived from the same class of property. The General Court may tax income not derived from property at a lower rate than income derived from property, and may grant reasonable exemptions and abatements. Any class of property the income from which is taxed under the provisions of this article may be exempted from the imposition and levying of proportional and reasonable assessments, rates and taxes as at present authorized by the Constitution. This article shall not be construed to limit, the power of the General Court to impose and levy reasonable duties and excises."</p> <p>The portion of c. 1, § 1, art. 4 of the Constitution which was changed by the forty-fourth amendment, printed above, but which was in force when St. 1914, c. 761, was approved by the Governor, is quoted in the opinion.</p>

<p>Equity Jurisdiction, To reach and apply property fraudulently conveyed and transferred. Evidence, Presumptions and burden of proof.</p> <p>In a suit in equity to reach and apply to the payment of the principal defendant’s judgment debt to the plaintiff property fraudulently conveyed and transferred to the other defendants, where the plaintiff has shown an intentional and fraudulent commingling of property of the defendant debtor with that of one of the other defendants and traces property of the defendant debtor into the confused mass, the burden of proof is upon those defendants to make the separation.</p> <p>In the same case, in regard to property transferred to another of the defendants, where it appeared that a transfer of certain shares was made by the defendant debtor to this other defendant as an open preference for the purpose of securing and paying an honest debt, but it also was shown that this defendant desired to help the defendant debtor in other ways to secrete his property from the plaintiff, it was held that the existence of this desire was not enough to vitiate the genuine transfer for the payment of an honest debt.</p> <p>Apart from statutory provisions a debtor has a right to prefer one creditor to another provided there is no secret trust for his own benefit.</p> <p>In regard to still another of the defendants in the same case, it appeared that this defendant was an old lady and was annoyed by the care of property, that she conveyed certain real estate, acquired by foreclosure, in such a manner that the equity stood in the name of a conspiring defendant instead of the name of the defendant debtor, and that the old lady defendant held a second mortgage on it, but that she was ignorant of business and was solicitous of avoiding loss on her security, and a master found that she was innocent of any wrong in pursuing the dominant end of protecting herself by the means taken. All the transactions in which she participated became public immediately by the recording of instruments, and the result of the transactions did not appear to have injured the plaintiff. Held, that, in the face of an express finding that this defendant was innocent, it was not necessary to impute to her a fraudulent purpose as matter of law.</p>

<p>Insurance, Fire. Agency, Scope of authority. Words, "You are covered.”</p> <p>Under the statutes of this Commonwealth temporary contracts of insurance may be made orally.</p> <p>If the agent of an insurance company upon an application for insurance against fire and after an oral agreement as to the terms of the contract says to the applicant, “you are covered,” this commonly means, and can be found to mean, that the property shall be insured, in accordance with the terms of the standard form of policy, for a reasonable time considering all the attendant conditions, until a policy in writing in the Massachusetts standard form can be issued.</p> <p>A temporary oral contract of insurance of the kind above described expires after the lapse of a reasonable time without the issuing of a policy in writing.</p> <p>Where the applicant for a policy under such a temporary oral contract of insurance against fire, who had made a part payment of the premium at the time of such oral agreement and had promised to return to the office of the insurer to settle and who lived within a few miles of that office, did not return and nothing was done on either side until five months later when the property to be insured was destroyed by fire, in an action on the oral contract of insurance it was held that a reasonable time had elapsed and that the temporary oral contract had expired.</p> <p>It cannot be presumed that an ordinary insurance agent can bind an insurance company by oral contracts for fire insurance except for temporary purposes or on occasions akin to emergencies.</p>

<p>Two petitions, filed in the Land Court on March 4, 1910, by the Boston and Albany Railroad Company for the registration of its title as the owner in fee simple of certain land in Cambridge.</p> <p>The cases were heard together by Davis, J. The essential facts are stated in the opinion. One Hastings, the city engineer of the city of Cambridge, was called as a witness by the respondents. He produced a plan which, he testified, was “furnished to him” by the petitioner, showing the side line of the location of 1866, with a red line running from it. This red line was interpreted by the city engineer, in making the layout of Henry Street in 1884, as showing the side line of the railroad location. Beyond the fact that the plan was furnished by the petitioner, there was nothing to show why, under what circumstances or by what official or employee, it was made. The judge admitted the plan in evidence “as showing the situation on the ground,” but ruled that the petitioner was “in no way estopped by it,” and excluded the interpretation placed upon it by the city engineer.</p> <p>At the request of the petitioner the judge made the following rulings:</p> <p>“1. The petitioner is entitled to registration of its title as prayed for in its petition as against the respondents.”</p> <p>“10. Since the year 1861 the respondent Reardon cannot gain title to any of the land within the five-rod location of the petitioner by adverse possession..</p> <p>“11. Since 1874 the respondent Reardon cannot gain title to any of the land of the petitioner by adverse possession.</p> <p>“12. Upon all the evidence the respondent Reardon cannot gain title to the land of the petitioner by adverse possession.”</p> <p>“16. Upon all the evidence the petitioner has not abandoned its right to occupy for railroad purposes so much of this land as is included within the locations of December 27, 1853, and November 26, 1866.</p> <p>“17. As the petitioner owns the fee, even if there had been abandonment of any part of this land for railroad purposes such abandonment would not divest it of the fee.”</p> <p>“ 19. Upon all the evidence the petitioner is not estopped from asserting its title against the respondents.</p> <p>“20. The elements necessary for an estoppel against the petitioner and in favor of the respondents are lacking.”</p> <p>The judge found (upon the two petitions) that the petitioner was entitled to have its title registered, subject to certain easements of the city of Cambridge arising out of a taking by the city for sewer purposes in 1887 and also subject to certain rights of way. The respondents alleged exceptions.</p> <p>Article 6 of the Declaration of Rights is as follows: “No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is .absurd and unnatural.”</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 that Dr. G. W. Morse, a physician, was entitled to the amount of $80 for attendance upon Jacob J. Huxen, an injured employee, and that, because of the nature of the injury, it was an unusual case and the physician was entitled to recover not only for his services during the first two weeks after the employee’s injury but also for treatment rendered after the expiration of the first two weeks.</p> <p>The case was heard by Morton, J. The findings of the Industrial Accident Board are described in the opinion. The judge made a decree in accordance with the decision of the board; and the insurer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Probate Court for the county of Middlesex on October 3,1916, by Richard H. Dana, of Cambridge, as the executor of the will of his wife, Edith L. Dana, for instructions as to the proper basis upon which to compute the legacy and succession tax due to the Commonwealth on the passing to Richard H. Dana, individually, of the property devised and bequeathed to him as the sole residuary devisee and legatee under the will. The Probate Court made a decree that the entire estate passing to Richard H. Dana under the residuary clause of the will was subject to a legacy and succession tax under St. 1912, c. 678, § 1, and that no deduction should be made therefrom. The defendant, Richard H. Dana, individually, appealed and filed the following statement of the grounds of appeal:</p> <p>“1. Because according to the true construction of St. 1912, c. 678, § 1, a deduction should be made from the property passing to the said Richard H. Dana by the residuary clause of the will of Edith L. Dana, first of the amount of his interest in the real estate as tenant by the curtesy; and second of that part of the estate real and personal which his wife was unable to deprive him of by her will, and a legacy tax should be assessed only upon or on account of his share of the estate less said deduction.</p> <p>“2. Because the appellant stands as a purchaser as regards so much of the estate as he takes in lieu of curtesy <and in lieu of that part of the estate real and personal which his wife was unable to deprive him of by her will, and a purchaser is immune from a legacy or succession tax.</p> <p>“3. Because the levying of an inheritance, legacy or succession tax in Massachusetts upon so much of the said estate as the appellant takes in lieu of curtesy and in lieu of that part of the estate real and personal which his wife was unable to deprive him of by her will or upon the appellant on account of the same is in violation of the Fourteenth Amendment of the Constitution of the United States since it deprives him of his property without due process of law; and is also in violation of art. 4, c. 1, § 1, of the Constitution of Massachusetts since it is the exaction of a duty or excise which is unreasonable and plainly and grossly oppressive and contrary to common right.</p> <p>“4. Because said decree in all respects is contrary to law.”</p> <p>The appeal was heard by Braley, J. The facts are stated in the opinion. The single justice made a final decree that the decree of the Probate Court be affirmed and that the case be remanded to that court for further proceedings. The defendant, Richard H. Dana, individually, appealed.</p>

<p>Tax, On legacies and successions. Contract, To make legacy. Constitutional Law.</p> <p>In the provision of St. 1912, c. 678, § 1, imposing an excise on the passing of “All property within the jurisdiction of the Commonwealth, corporeal or incorporeal . . . belonging to inhabitants of the Commonwealth, . . . which shall pass by will, or by the laws regulating intestate succession, or by deed, grant or gift, except in cases of a bona fide purchase for full consideration in money or money’s worth, made or intended" to take effect in possession or enjoyment after the death of the grantor,” the exception of “cases of a bona fide purchase” refers only to property passing “by deed, grant or gift” and does not apply to property passing by will in accordance with an agreement of a testator to make a certain legacy in consideration of services performed for him by the legatee.</p> <p>A legacy of $6,030.14 given by the will of a testator to his housekeeper in pursuance of an agreement to bequeath to her $2,000 with an additional bequest of $500, or a proportional part thereof for a fraction of a year, for each year after a date named until his decease, provided she continues to discharge her duties to the satisfaction of the testator until his death, is subject to a legacy tax under St. 1912, c. 618, § 1.</p> <p>In the case in which the point stated above was decided, it was said, that the promise to make the legacy, when performed, did not make the legatee a creditor of the estate of the testator, and that the question, whether a legacy ostensibly given for the purpose of discharging a lawful debt would be subject to the excise, was not raised by the record, although cases from other States were cited holding that a legacy in discharge of a debt is subject to a legacy tax.</p> <p>In the case mentioned above, it appeared that when the contract between the testator and his housekeeper was made a statute imposing a legacy and succession tax substantially in its present form was in force, so that the contract must be presumed to have been made in contemplation of the operation of the statute, but it was said, that the excise upon the privilege of receiving the legacy by will would not have been in violation of the Constitution of the Commonwealth nor of that of the United States, if the contract had been made before any statute on the subject was enacted, because a contract to receive part payment for services by a transfer of property by will necessarily implies that the bequest is to be received subject to the general laws respecting such transfers that shall be in force at the death of the testator.</p>

<p>Two petitions, filed in the Probate Court for the county of Suffolk on October 10, 1916, under St. 1909, c. 490, Part IV, § 20, respectively by the administratrix of the estate of Frank J. Tyler and the executrix of the will of Charles W. Parker against the Treasurer and Receiver General for the abatement of succession taxes alleged to have been assessed unlawfully upon payments made to the beneficiaries under certain policies of life insurance; and an</p> <p>Information in equity, filed in the Supreme Judicial Court on November 29,1916, by the Attorney General against the widow of William H. Pierce, late of Fall River, the beneficiary under certain policies of life insurance, to collect a succession tax on payments made to the defendant as such beneficiary.</p> <p>In each of the first two cases the Probate Court made a decree abating the tax and ordering the Treasurer and Receiver General to repay it, and in each case the Treasurer and Receiver General appealed.</p> <p>An order was made by a single justice of the Supreme Judicial Court that the two appeals and the information filed by the Attorney General should be heard together. Later the cases came on to be heard together before Braley, J., who reserved them for determination by the full court.</p>

<p>Contbact to recover a commission as a broker for the sale of the fixtures, stock in trade, license and good will of the defendants’ liquor business, which had been carried on at 18 Eliot Street in Boston. Writ dated November 21, 1913.</p> <p>The plaintiff did not enter the writ on the return day, which was the first Monday of January, 1914, as he should have done. On February 5, 1914, a judge of the Superior Court made an order" allowing the late entry of the action. On February 12, 1914, the defendants, appearing specially by their attorney, filed a motion to dismiss the action.</p> <p>On February 18, 1916, J. M. Browne, Esquire, presented for filing to one of the clerks of the Superior Court a special appearance for the defendants. The clerk said that he could not accept a special appearance from him, and Mr. Browne thereupon authorized the clerk to strike out the word “special” and file the appearance as a general one, which the clerk thereupon did. Mr. Browne appeared in the case solely for the purpose of trying the case on its merits because one of the counsel for the defendants, who up to that time had appeared specially, intended to testify at the trial and in fact did so testify.</p> <p>There was a hearing on the motion to dismiss before Morton, J., who on March 14,1916, in the absence of counsel made an order denying the motion. On March 20, 1916, the defendants filed an exception in writing to the order. The plaintiff contended that this exception was not taken seasonably under Rule 46.</p> <p>On March 22, 1916, the defendants filed the following answer signed by their attorney: “Now come the defendants without waiving any rights under their motion to dismiss said action and now on file in said court and without waiving any rights under their exceptions filed in said cause, and deny each and every allegation in the plaintiff’s amended declaration [and in each count thereof].”</p> <p>The case was heard on the merits by Aiken, C. J., without a jury. The character of the evidence is described briefly in the opinion. The defendants asked the Chief Justice to rule that upon all the evidence the finding should be for the defendants. The Chief Justice found for the plaintiff in the sum of $1,717.50. This finding was made on April 21, 1916. To the “refusal and finding” the defendants excepted “by filing” a bill of exceptions on May 10, 1916.</p> <p>Rule 46 of the Superior Court, mentioned in the opinion, is as follows: “No exception shall be allowed to any order, ruling or decision made in the presence of counsel, unless it be saved at the time such order, ruling or decision is given. Exceptions to an order, ruling or decision made in the absence of counsel shall be saved by filing in the clerk’s office within three days after the receipt of notice from the clerk of such order, ruling or decision, a written statement that the party excepts thereto. All exceptions to a charge to the jury shall be claimed and saved before the jury are sent out. When further instructions are given in the absence of counsel or any ruling made after the jury have retired, a party may except thereto at any time within twenty-four hours next following.”</p>

<p>Contract for repairs made in replacing burned out bearings in a motor truck that had been made by the plaintiff for the defendant. Writ dated January 9, 1914.</p> <p>The defendant’s answer set up the contract between the parties, of which the material portion is quoted in the opinion.</p> <p>In the Superior Court the case was tried before King, J. The evidence, the rulings asked for by the defendant and refused by the judge, and the instructions given by him to the jury are described in the opinion. The jury returned a verdict for the plaintiff in the sum of $100; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Contract, In writing. Sale, Warranty. Evidence, Extrinsic affecting writings. Motor Vehicle. Frauds, Statute of.</p> <p>An agreement in writing, accepted by the buyer, stating the sale of a used motor car of a kind described for $600 and the payment on deposit of $50, giving the names and addresses of the seller and the buyer, containing the guaranty “Guarantee as to parts same as with a new car” and an acknowledgment of the payment of the balance of $550, both signed by the seller, cannot be varied by showing that the seller during the negotiations which resulted in the sale orally warranted that the car could be operated twelve miles on one gallon of gasoline.</p> <p>The fact that the instrument in writing described above, which was accepted by the buyer, was not signed by him, was held to be immaterial in an action brought by him to enforce the alleged oral warranty, where no question could arise under the statute of frauds.</p>

<p>Bill in equity, filed in its substituted form in the Superior Court on March 22, 1916, by the surviving partner of a firm that did business under the name of the Mullan-Gilpin Lumber Company, against William F. Brooks, Sylvanus G. Morse, Charles Cohen and Louis Leven, containing the allegations that are described in the opinion, and praying, first, that the defendant Brooks be enjoined from proceeding further to foreclose the two mortgages described in the opinion made by the defendants Cohen and Leven to the defendant Brooks, dated September 2, 1915, on land and buildings on Standish Street in Cambridge, second, that the amount due to the defendant Brooks by the defendants Cohen and Leven upon said two mortgages for $400 each, dated September 2, 1915, on said two lots of land and the buildings thereon on Standish Street in Cambridge be fixed and determined, and that, upon payment by the plaintiff of such amounts so fixed and determined to the defendant Brooks, the defendant Brooks be ordered to assign said two mortgages to the plaintiff; and, third, for further relief.</p> <p>The case was referred to a master who filed a report, in which he found the facts that are stated in the opinion.</p> <p>The case was heard upon the master’s report by Fox, J., who made a memorandum of decision that “Upon the bill and the master’s report, no case is shown against Brooks; and as to Cohen and Leven, the plaintiff’s rights are fully secured by his suit at law and the attachment.” He ordered that an interlocutory decree be entered confirming the master’s report and dissolving the temporary injunction theretofore granted, and that a final decree be entered dismissing the bill with costs to the defendant Brooks.</p> <p>From both of the decrees entered in pursuance of these orders the plaintiff appealed.</p>

<p>Probate Court, Petition to revoke decree. Adoption. Evidence, Pleadings in other cases.</p> <p>The heirs at law and next of kin of a widow, who left a document purporting to be a will that'has been presented for probate but has not yet been allowed, may maintain a petition in the Probate Court to revoke a decree of that court by which the decedent when seventy-one years of age had adopted a man of less than half her age as her son, alleging that the decree of adoption was procured by the exercise of undue influence upon the weak mind of the widow and by a fraudulent concealment of the facts from the Probate Court.</p> <p>In the case above described it appeared that the adopted son had been employed as an attendant upon the widow’s husband, who had died less than two months before the adoption, that the widow was infatuated with him, that, although she previously had been an economical woman, she gave him presents of great value, including a motor car for which she paid $2,500, lived alone with him, travelled with him in Europe, spoke of him in extravagant terms and discussed with him the subject of marriage. It further appeared that the adopted son, before the adoption, said that he would get the widow “under his thumb,” and that shortly after the adoption the widow said that she had to “adopt him or marry him or he would leave, and I cannot be left alone.” Held, that it was right for the justice who heard the case to refuse to rule that on the evidence it could not be found that the adoption was procured by the undue influence of the adopted son.</p> <p>In the same case it was held that the respondent’s answer to a bill for instructions filed by the executor of the will of the widow and the respondent’s declaration in an action at law brought by him against the executor on an alleged promise of the testatrix to leave him all her property were admissible in evidence to show the claims made by the respondent against the estate of the widow.</p>

<p>Contract . upon promissory notes described in the opinion. Writ in the Municipal Court of the City of Boston dated February 18, 1916.</p> <p>On removal to the Superior Court the case was referred to an auditor, the parties agreeing that the auditor’s findings of fact should be final. Material facts found by the auditor are described in the opinion. Upon the facts found by the auditor, Fox, J., ordered judgment for the plaintiff in the sum of $677.43 with interest from the date of the filing of ti e auditor’s report. The defendant appealed.</p>

<p>Practice, Civil, Amendment of writ. Jurisdiction.</p> <p>Under R. L. c. 173, § 48, the Superior Court has power, in an action in which the defendant has appeared generally, to allow an amendment increasing the ad damnum of a writ from $300 to $600 although the original writ was returnable to a municipal court and was served by a constable, who under R. L. c. 25, § 89, had no power to serve a writ whose ad damnum exceeded $300.</p> <p>In the case stated above Loring & Pierce, JJ., concurring in a separate opinion, called attention to the fact that the question, whether the defendant might have moved successfully for an abatement of the action on the ground that he had not been brought into court upon the amended writ, was not before the court and on that question they expressed no opinion.</p>

<p>Trust, Construction of trust instrument, Misconduct of trustee. Equity Jurisdiction, To enforce trustee’s liability. Receiver. Equity Pleading and Practice, Bill.</p> <p>Provisions of a declaration of trust for the benefit of an unincorporated association of shareholders, which have for their main purpose the investment of the trust funds in and the management of real estate and give to the trustee subordinate powers incidental to that purpose, among others an authorization of the erection and repair of buildings “upon land belonging to” the trust and the development of such land, give to the trustee no power to use funds of the trust for the erection or alteration or repair of buildings upon land of others for an expected profit; and, if the trustee enters upon such an enterprise which is unsuccessful, he must repay to the association all loss sustained by it through such a wrongful diversion of the trust funds.</p> <p>Under the circumstances above described the trustee cannot escape responsibility for his conduct by reason of a provision of the declaration of the trust that he should be liable only “for the result of his own gross negligence or bad faith.”</p> <p>If the trustee under the trust above described, acting in bad faith and with gross negligence, distributes dividends among the shareholders when there are no funds from which such dividends should be paid, and in order to do so borrows money on notes of the trust bearing interest at one per cent per month secured by mortgages upon its property, the trustee cannot be compelled, in a suit in equity brought against him by a receiver of the property of the trust in the name of trustees who succeeded the defendant, to repay the amount of such dividends, where it does not appear that the defendant profited by the transaction, nor that at the time of the payment of the dividends the trust was insolvent, nor that their payment rendered it so, nor that any creditor gave to the trust credit, nor that any shareholder purchased a share by reason of such dividends.</p> <p>A bill in equity, brought by a receiver of the property of a trust, created by a declaration of trust for the benefit of an unincorporated association of shareholders, in the name of the trustee against a former trustee to recover losses alleged to have been sustained by reason of improper conduct of the former trustee unauthorized by the declaration of trust and also by reason of improper payments of dividends from money borrowed for the purpose of paying dividends, is not multifarious.</p>

<p>Slander, Privileged communication. Malice.</p> <p>At the trial of an action of tort for slander by an employee in a fish factory against his employer, a common friend of the plaintiff and of the defendant testified that the defendant stated to him that he had been told'by two of the defendant’s employees that there was a man at the defendant’s factory a few days before to buy some fish, and that this man asked for the plaintiff and told them “ that he had bought fish from” the plaintiff "two or three times before.” The common friend further testified that the defendant said that he would like to have the friend speak to the plaintiff about the matter "as he would like to clear the ¡matter up for his own protection, and if any one was stealing fish he wanted to know it so that he could protect himself.” There was no evidence of express malice or of special damage. Held, that it was for the jury to determine whether the defendant had reasonable cause to believe that thefts were taking place and whether his statement to the common friend was made in good faith in the belief that it was true, for his own protection and in an attempt merely to discover the guilty party, and that such findings were warranted by the evidence.</p> <p>If the findings above described were made by the jury, there being no evidence of express malice, the statement was privileged.</p> <p>The question, whether the circumstances under which the statement above described was made by the plaintiff were or were not such as to make it a privileged communication, being for the jury, and it being possible that the jury might find that the defendant in a communication not privileged accused the plaintiff of the crime of larceny, the judge properly might refuse to rule either that “no presumption of malice arose from the speaking of the words by the defendant,” or that "the plaintiff cannot recover without proof of express malice.”</p>

<p>Landlord and Tenant, Existence of relation. Equity Jurisdiction, Specific performance. Contract, What constitutes.</p> <p>The terms of a lease of land were agreed to orally by those who were to be parties to it and it was a condition precedent to the creation of the leasehold that the lease should be executed by the lessor and the lessee and duplicates, so executed, should be mutually exchanged and delivered. The lessor then prepared the leases in duplicate, signed both, sent them to the lessee in another State and then, after a delay in their return, wrote to the lessee that, unless the lease, duly executed by the lessee, was returned to him by a certain day, all negotiations would be terminated. On the day specified, not having received a lease executed by the lessee, the lessor notified him that negotiations were terminated. The next day the lessee executed the lease and sent the original to the lessor, but the lessor refused to give him possession of the premises. Held, that the lessee could not maintain a suit in equity to compel specific performance of the lease because the lessor had withdrawn from the negotiations before the relation of landlord and tenant had arisen.</p>

<p>Bill in equity, filed in the Superior Court on March 3, 1915, by Mary Morin against the executor of the will of James Kirkland, late of Lowell, and against Mary Kirkland and Samuel W.</p> <p>Kirkland, to establish a resulting trust in a dwelling house and land on the corner of First Street and Read- Street in Lowell, which was purchased in the name of James Kirkland with money belonging to the plaintiff as stated in the opinion.</p> <p>The case was referred to a master, who made the findings that are described in the opinion. Later the case was heard by Hamilton, J., upon the master’s report. He was of opinion that an equitable division of the property in question would be upon the basis pointed out in that part of the master’s report in which he found as follows: “I find that the plaintiff is entitled to the same proportion of the First and Read Street property as $3,652.36 bears to $6,702.75, the combined contributions of both.” The judge ordered a decree to be entered in accordance with this view, the plaintiff to have her costs to be taxed as in an action at law.</p> <p>At the request of the plaintiff and with the consent of the defendants the judge reported the case upon the pleadings and the master’s report for determination by this court. If the order of the judge was correct, a decree was to be entered as ordered; otherwise, such orders or decrees were to be entered as might be just and reasonable.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on September 5 and amended on September 13, 1911, by a judgment creditor of the World’s Shoe and Leather Fair Company, a corporation established under the laws of the State of Maine, to enforce the alleged liability of the defendants under the Revised Statutes of Maine (1903), c. 47, §§ 87, 89, as subscribers for stock in that corporation for which they had not paid.</p> <p>The case was referred to a master, who made a report containing the findings that are stated in the opinion.</p> <p>The case was heard by Jenney, J., upon exceptions to the master’s report. The judge made an interlocutory decree that all exceptions to the master’s report be overruled and that the report be confirmed. Later by order of the same judge a final decree was entered dismissing the bill, with one bill of costs taxed by the clerk in favor of the defendants. The plaintiff appealed from both decrees and requested the judge to report the material facts found by him as provided by R. L. c. 159, § 23. The judge made the following report: “In accordance with this request, and assuming that such request can properly be made for the finding of facts, I find the facts to be as stated in the master’s report.”</p> <p>Revised Statutes of Maine (1903), c. 47, §§ 87, 89, provide as follows:</p> <p>“Sec. 87. The capital stock subscribed for any corporation is declared to be and stands for the security of all creditors thereof; and no payment upon any subscription to or agreement for the capital stock of any corporation, shall be deemed a payment within the purview of this chapter, unless bona fide made in cash, or in some other matter or thing at a bona fide and fair valuation thereof.”</p> <p>“Sec. 89. Any person having such judgment . . . may, within two years after their right of action herein given accrues, commence an action on the case or bill in equity, without demand or other previous formalities, against any persons, if a bill in equity, jointly or severally, otherwise severally, who have subscribed for or agreed to take stock in said corporation and have not paid for the same; . . . and in such action they may recover the amount of the capital stock so remaining unpaid. . . .”</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability. Evidence, Circumstantial.</p> <p>In an action by an administrator for causing the conscious suffering and death of the plaintiff’s intestate when in the employ of the defendant, where there is evidence that the machine by which the intestate was injured was defective, although no defect was visible, that the defective condition had existed for some time before the injury and that the defendant’s superintendent had been informed of it, this entitles the plaintiff to go to the jury, although the defendant has introduced evidence, which the jury is not bound to believe, that the accident happened because of a hidden flaw on the inside of one of the arms of the machine.</p> <p>In the same case it was held that the fact, that a hood or bonnet which came down over the front of the cylinder did not conceal the journal boxes, did not make the danger an obvious one or show that the intestate was careless or that he assumed the risk of injury, he having had no information or warning that the machine was defective or out of repair.</p> <p>In the same case, although there was no direct evidence that the intestate started the machine, there was evidence that at about a quarter before seven o’clock in the morning the intestate had been seen putting on his apron, that at seven o’clock the machine was started, that shortly after this a crash was heard and the accident had happened, and that the machine was running when the intestate was injured. Held, that, it being the duty of the intestate to start the machine, near which he had been seen getting ready to begin his work, in the absence of evidence to the contrary, it was a fair inference that he started the machine.</p> <p>In the same case, where it appeared that the machine was a drum-setting machine used for smoothing and straightening out rough leather, there was no direct evidence that the intestate put a piece of leather on the drum, but it appeared that after the injury a piece of leather was found there and that it was the intestate’s duty to place it there, and it was held, that the jury properly might infer that it was placed there by him and accordingly might find that he was engaged in the discharge of his duty when he was injured and was not negligent, the injury having been sustained before the passage of St. 1914, c. 553.</p>

<p>Five actions of tort for false and fraudulent representations whereby the plaintiffs' were induced to buy or to refrain from selling shares of preferred stock in the North American Rubber Company, as stated and described in the opinion. Writs dated respectively February 11, March 8, April 29, May 18 and June 8, 1915.</p> <p>In each case the defendant demurred.</p> <p>The demurrers, as well as demurrers of the same defendant in thirty-two other actions each brought against him by a different plaintiff, came on to be heard before McLaughlin, J., who made orders overruling all the demurrers and by agreement of the counsel reported the five cases as “typical ones in their respective classes” for determination by this court.</p>

<p> Deceit. </p> <p>The declaration in an action for deceit contained substantially the same allegations contained in the declarations in Holloway v. Forsyth, ante, 358, and further alleged that, “in connection with said representations, the defendant by his conduct impliedly represented that he, the defendant, was a disinterested person and made said representations as such, and that he had no interest in the rubber company except through his connection with the [other company] as a buyer of its product,” and further alleged that the plaintiff "believed said representations and believed that the defendant made the same as a disinterested person and relied thereon,” and “that, in so far as said representations or any of them constituted expressions of belief or opinion . . ., they were not true statements of the defendant’s honest opinion and belief but were wholly false . . . and were made by the defendant ... for the purpose of defrauding the plaintiff and others similarly situated.” On demurrer it was held, that the declaration stated a good cause of action.</p>

<p>Contract for $1,300, alleged to be due to Charles Cohen and Louis Leven, building contractors, as instalments of loans under the provisions of the construction loan mortgage to the defendant described in the opinion, and to have been assigned by Cohen and Leven to the plaintiff. Writ dated March 8, 1916.</p> <p>The alleged assignment was in the form of an agreement, which in its first three paragraphs recited the provisions of the agreement between the contractors and the defendant, described in the opinion, as to the fifth instalment to be advanced upon the construction loan as to Lot A and the fourth instalment to be advanced upon the construction loan as to Lot B, and then provided as follows:</p> <p>“And whereas, Max Finkelstein of said Boston in consideration of One Dollar and other valuable considerations this day-paid to the said Cohen and Leven, the receipt whereof is hereby-acknowledged and the said Cohen and Leven do by these presents assign, set-over, and transfer to the said Max Finkelstein, his heirs, executors, administrators and assigns, forever, the said payment on Lot A and also the said payment on Lot B, which shall be due to the said Cohen and Leven on account of their said agreement with the said Sylvanus G. Morse.”</p> <p>This agreement was signed by Cohen and Leven, and there was appended to it the following assent signed by the defendant: “I, Sylvanus G. Morse hereby agree to the above presents and will pay the said sums of money stated above when the said Charles Cohen and Louis Leven shall be entitled to the same under their agreement with me.”</p> <p>In the Superior Court the case was tried before Lawton, J. The material facts are stated in the opinion. At the close of the evidence and subject to exceptions by both parties the judge ordered a verdict for the plaintiff in the sum of $853.42 and reported the case for determination by this court.</p>

Contract upon a policy of insurance against loss by reason of liability for damages on account of bodily injury or death of any person or persons caused by the negligence of the plaintiff and resulting from the operation of its teams. Writ dated April 8, 1914. The defendant filed a declaration in set-off for $295.81, alleged to be an excess premium due under the provisions of the policy.

<p>Negligence, Attorney at law, Employer’s liability. Attorney at law. Custom. Damages, In tort, Interest. Interest. Practice, Civil, Conduct of trial, Exceptions.</p> <p>If an attorney at law, retained by an employee to prosecute a claim against his employer under the employers’ liability act, negligently failed to give to the employer a required statutory notice and as a result of such negligence the employee is prevented from recovering a verdict which he otherwise might have recovered at the trial of an action against the employer, the employee in an action of tort against the attorney at law can recover the amount of the loss thus sustained by him.</p> <p>E, at the trial of such an action against the attorney at law, there is evidence that at the trial of the action of the employee against his employer the plaintiff might have proved that the employee, in the exercise of due care and under instructions by one charged by his employer with a duty of superintendence, was changing gears on a spinning machine and had been told that the machine would not be started until he reported either to the superintendent or to the foreman of the room; that the superintendent, with full knowledge of the circumstances and without warning the plaintiff, gave an order for the starting of the machine while the plaintiff still was at work upon it; that the order was obeyed and that the plaintiff was injured, the question, whether, if the statutory notice had been given, the plaintiff would have been entitled to recover from his employer, is for the jury.</p> <p>In such an action, the mere facts that in the room where the plaintiff was at work when injured, “before starting the frame it is the custom to holler so as to warn everybody about the frame to get away so that when it shall start up no one will get caught in it,” and that such an outcry was made before the starting of the machine which injured the plaintiff, even if there had been evidence that such a custom had been called to the plaintiff’s attention, as there was not, would not have precluded the plaintiff from recovery, because such a custom devised by the employees for their own safety did not modify nor supplant the duty to warn resting upon the employer, and the plaintiff had a right to rely on that duty being performed for his safety by the employer’s representatives.</p> <p>If the plaintiff is entitled to recover in such an action, he is entitled to have included in his damages interest upon such amount as he should have recovered at the trial of his action against his employer from the date when such verdict would have been rendered.</p> <p>The admission of a leading question put to a witness is within the discretion of the trial judge.</p>

<p>Workmen’s Compensation Act. Words, “Mistake.”</p> <p>An illiterate workman unable to read or write in English or to testify except through an interpreter, who was ignorant of the workmen’s compensation act and its requirements and who, when injured in attempting to lift a heavy iron shaft, reported the accident to his foreman and supposed that his foreman or the doctor who was attending him would do whatever was necessary to protect his rights under the act but did not ask either of them to do it and was not informed that it would be done, is not excused from the requirement of St. 1911, c. 751, Part II, § 15, St. 1912, c. 571, § 5, that a claim for compensation shall be filed with the Industrial Accident Board within six months after the occurrence of the injury, as his failure to make a claim within the period prescribed by § 15 cannot be found to have been “occasioned by mistake or other reasonable cause.”</p> <p>A workman’s ignorance of the law and of his rights and obligations under the workmen’s compensation act cannot be found to have been a “mistake or other reasonable cause’’ whereby a failure to file a claim within the period prescribed by the act was occasioned.</p> <p>Nor can such a workman’s unfounded expectation that some one would fulfil the requirements of the law in his behalf be found to have been a “mistake or other reasonable cause” within the meaning of the statute, especially where there was no promise or assurance that this would be done.</p>

<p>Contract, Construction. Words, “First proceeds.”</p> <p>Where, under the provisions of a contract in writing for the purchase of a going business, a $1,200 balance remaining due on the purchase price is to be paid “out of the first proceeds of the business after deducting all expenses of running the business and twenty-five dollars for living expenses,” and where it appears that, at the time of the passing of papers and the signing of the agreement, the purchaser, with the knowledge and acquiescence of the seller, by mortgaging the property procured $1,600, all of which, with $200 added, he paid to the seller, leaving the $1,200 referred to in the contract still due on the purchase price, it cannot be said that the money procured on the mortgage was “first proceeds” of the business.</p> <p>The words “first proceeds of the business” in the contract above described mean “net profits” of the business.</p>

<p>Contract, Implied, Validity. Husband and Wife. Executor and Administrator. Words, “Expenses.”</p> <p>Although a husband, upon paying after the death of his wife expenses incurred in connection with her last sickness, death and funeral, becomes subrogated to the rights of the creditors of the estate whose claims he has discharged and can recover' the amounts so paid in an action of contract against the executor of her will, he cannot recover for amounts paid by him previous to her death for expenses incurred in her last sickness.</p> <p>An agreement between a husband and his wife, who has property sufficient for her separate support, that he shall be reimbursed from her estate for amounts paid . by him for expenses incurred in connection with her last sickness, is unenforceable.</p> <p>The provisions of R. L. c. 142, § 1, as amended by St. 1909, c. 297, prescribing the order in which debts of an insolvent estate of a deceased person shall be paid “after discharging the necessary expenses of his funeral and last sickness and the charges of administration,” do not place upon the executor of the will of a wife the duty of repaying to her husband amounts paid by him before her death for expenses incurred in connection with her last sickness.</p>

<p>Corporation, Authority of directors.</p> <p>The directors of a corporation properly may employ counsel to defend suits in equity brought by a minority in interest of the holders of preferred stock in the corporation to set aside an honest and desirable reorganization by which the credit and business of the corporation had been preserved and greatly enlarged and the holders of both the common and the preferred stock had been benefited, the suits having been unjustifiable attempts to overset the reorganization for the plaintiffs’ personal advantage and not for the benefit of the corporation.</p>

<p>Adoption. Words, "Parent.”</p> <p>Where a person adopted under R. L. c. 154, § 1, by a husband and wife as the child of both has inherited or acquired by will property from each of his adopting parents and after the death of both of them dies intestate, under § 7 of the same chapter all his property acquired by himself or by gift or inheritance from either of his adopting parents must be distributed according to the provisions of R. L. cc. 133, 140, “among the persons who would have been his kindred if he had been born to his adopting parent in lawful wedlock,” without regard to the respective amounts received by such adopted child from each of his adopting parents.</p> <p>In the case in which the above point was decided, it appeared that the adopted child also had inherited from her natural father a certain sum of money, and by a decree, assented to by all parties interested, it was ordered that, in accordance with the provision contained in R. L. c. 154, § 7, this property should “be distributed in the same manner as if no act of adoption had taken place.”</p>

<p>Will, Subscription of witnesses. Words, "Subscribe.”</p> <p>A will has been subscribed by three witnesses in accordance with the requirement of R. L. c. 135, where the third witness, intending to sign his own name, after signing his first name, which was the same as the first name of the preceding witness, unconsciously and inadvertently copied the rest of the name of the preceding witness instead of finishing the writing of his own name.</p>

<p>Tort for the loss of certain jewelry and personal effects on the night of June 10, 1912, when the plaintiff was a passenger on a sleeping car owned and operated by the defendant. Writ dated July 11, 1912.</p> <p>In the Superior Court the case was tried before Chase, J.. The evidence is described in the opinion. The declaration contained three counts, but it was stated in the report to this court that “At the close of the evidence the plaintiff waived the first and second counts of her declaration and the following special questions were submitted to the jury under the third count.” The third count is described in the opinion.</p> <p>The special questions submitted to the jury were as follows:</p> <p>1. “Did the defendant exercise reasonable care to protect the plaintiff’s property?”</p> <p>2. “"What was the amount of the plaintiff’s loss and damage?’’</p> <p>To the first question the jury answered, “No,” and to the second question, “$1,200.” Thereupon the judge ordered the jury to return a general verdict for the defendant and by agreement reported the case for determination by this court. If the verdict for the defendant was ordered rightly, judgment was to be entered for the défendant. If not, judgment was to be entered for the plaintiff in the sum of $1,200.</p>

<p>Gaming. Words, “Knowledge.”</p> <p>In an action under R. L. c. 99, § 2, against the tenant and occupant of a hotel to recover money alleged to have been lost at gaming in the building with the defendant’s knowledge and consent, where there is evidence that the plaintiff entered a room in the defendant’s hotel and there bet on a horse race and lost his bet, which was won by other persons present to whom he paid the money, it can be found that the plaintiff lost his money in one of the forms of gaming described in § 1 of the same chapter.</p> <p>In the same case there was evidence that the plaintiff paid upon his bets $360 in cash and signed a check or note for $5,000, which was unenforceable but which he redeemed by a cash payment before leaving the building after the race had been finished and the money had been won, and it was held that the money with which the check or note was redeemed could be found to have been lost in gaming as much as' could the money paid in cash before the wager was determined and therefore that the whole amount could be recovered from the defendant.</p> <p>In the same case it was held that the provision of the statute, making the owner, tenant-or occupant of a building liable for money lost at gaming therein “with the knowledge or consent of said owner, occupant, or tenant,” did not require the plaintiff to prove that the defendant knew of the gaming by personal observation, and that such knowledge could he found on evidence of notice to the defendant of such circumstances as ordinarily upon investigation would lead him in the exercise of reasonable diligence to a knowledge that gaming was being carried on there.</p> <p>In the same case, in which the defendant was a corporation, it was held that it properly was left to the jury to determine whether the defendant’s general manager, by reason of his relation to the business and his control over it, was chargeable with notice of the unlawful use that was being made of the room in which the plaintiff lost his money.</p>

Tort for personal injuries resulting from a fall in a dark hallway of an office building owned and controlled by the defendant. Writ dated June 12, 1915. In the Superior Court the case was tried before Dubuque, J. Certain evidence, described in the opinion, was admitted subject to the plaintiff’s exception. There was a verdict for the defendant; and the plaintiff alleged exceptions.

Two actions op tort, the first for personal injuries received by a boy seven years of age when he was run into by a street car of the defendant; and the second by the father of the boy for consequential damages. Writs dated August 4, 1914. In the Superior Court the cases were tried together before Quinn, J. The material evidence is described in the opinion.

Tort for personal injuries, received when the plaintiff on March 11, 1915, was alighting from a surface street railway car at the Sullivan Square terminal of the defendant in Boston by reason of the starting of the car. Writ dated April 17, 1915. In the Superior Court the action was tried before Hardy, J. Material facts and exceptions of the defendant to a portion of the charge of the judge are described in the opinion.

<p>Municipal Corporations, Officers and agents. Attorney at Law. Contract, Validity. Words, “ Current expenses.”</p> <p>A city official, merely by virtue of the general powers conferred upon him by law, has no authority to employ counsel on behalf of the city.</p> <p>Authority on the part of fire commissioners of a city to employ counsel on behalf of the city cannot be implied as incident or necessary to the exercise of the functions of their office.</p> <p>The fire commissioners of a city have no right nor power to expend any portion of a fund appropriated by the city for the “ current expenses ” of its fire department for the services of counsel whom they had no express authority to employ.</p>

<p>Insurance, Fire, Assignment, Oral. Contract, What constitutes. Assignment. Practice, Civil, Verdict, Exceptions, New trial, Rescript. Words, “ Covered.”</p> <p>Where a policy of insurance against loss of an automobile by fire was issued by mistake in the name of a previous owner of the automobile and, upon the owner calling this to the attention of the insurance agent, the agent told the owner “not to worry . . . that he is covered,” took the policy, procured the execution of an assignment of it to the owner and the assent of the insurance company thereto, and some weeks later returned it to the owner, who accepted it, if, over a month after the policy thus is returned to the owner, the automobile is destroyed by fire, the owner cannot recover from the insurance company, either upon the policy, because it originally was issued to one who had no interest in the automobile, or upon an oral agreement to insure, because such oral agreement expired when the owner accepted the policy and also because an agreement to “ cover” the owner remains in force only for a reasonable time after the acceptance of the policy and such reasonable time had expired before the fire.</p> <p>A general verdict for the plaintiff was returned upon two counts of a declaration in an action of contract, each upon a separate alleged agreement of insurance, and, upon exceptions by the defendant, it was determined that as a matter of law there should have been a verdict for the defendant upon one of the counts. The amount that the jury must have found on each count was, however, manifest as a matter of arithmetic, and this court ordered that, if the plaintiff, within a certain time, would remit all in excess of the amount which the jury must have found to be due to the plaintiff upon the count which properly was submitted to them, there should be a judgment for the plaintiff upon the sum so properly found, and, otherwise, that the defendant’s exceptions should be sustained.</p>

<p>Contract on an account annexed for $40.50, with one item, dated May, 1915, “To 27 days wages at $45 per month as cook.” Writ in the Municipal Court of the City of Boston dated July 1, 1915.</p> <p>On removal to the Superior Court the case was submitted to Hall, J., upon an “Agreed Statement of Facts,” which is quoted in full in the opinion. The judge found for the plaintiff and assessed damages in the sum of $43.18. He ordered judgment accordingly, and from the judgment entered in pursuance of the order the defendants appealed.</p> <p>R. L. c. 156, § 6, referred to in the opinion, is as follows: "Questions of law arising upon exceptions or report, upon appeals from the Superior . Court, upon cases stated or upon special verdicts and all issues in law, except as otherwise provided, shall be heard and determined by the full court.”</p> <p>The case was submitted on briefs at the sitting of the court in November, 1916, and afterwards was submitted on briefs to all the justices.</p>

Contract for a balance of $2,500 due on a mortgage note, after applying to the payment of the principal and interest due on the note the proceeds from a foreclosure sale'amounting to $4,000. Writ dated January 11, 1916.

<p>Negligence, In use of highway.</p> <p>Where, before the passage of St. 1914, c. 553, a boy about fifteen years of age with four other boys was playing “puss in the corner” in a public highway and, in Tunning across the street as fast as he could to reach one of the goals, which was a tree at the side of the street, ran at full speed against a motor car, which he might have seen four hundred feet away if he had looked, and was injured, he was held to have been negligent as matter of law, although there was testimony that he “looked both ways” before he started to cross the street, this, under the circumstances shown, not being evidence of the exercise of the care required of a boy of his years.</p>

<p>Practice, Civil, Auditor’s report. Witness, Impeachment.</p> <p>Where at the trial of an action at law an auditor’s report is offered in evidence, if one of the parties objects to certain findings of the auditor, he has no right to ask to have these portions of the report excluded or stricken out, as the report must be admitted as it stands or not at all, and bis proper remedy, if the report contains objectionable matter, is to move to have it recommitted to the auditor for change or modification.</p> <p>The testimony of a witness cannot be impeached by evidence of his general reputation “for honesty and veracity.” The proper inquiry for that purpose is in regard to the witness’s reputation for truth and veracity.</p> <p>Where an auditor’s report has been admitted in evidence at a trial, the credibility of a witness who testified before the auditor cannot be impeached by evidence of his bad reputation as to truth and veracity introduced at the trial at which he has not testified.</p>

<p> Workmen’s Compensation Act. </p> <p>Under St. 1911, c. 751, Part II, § 22, as amended by St. 1914, c. 708, § 8, the Industrial Accident Board has power to authorize the redemption of the liability of the insurer under the workmen’s compensation act for compensation to an injured employee by the payment of a lump sum, after a weekly payment has been continued for not less than six months, only “in unusual cases where the parties agree and the board deems it to be for the best interest of the employee or his dependents;” and when the board, after having made all the requisite findings, has authorized the payment of a lump sum, such payment is a full settlement for all compensation, general and specific, under the act, and both the insurer and the employee are bound by it.</p> <p>Accordingly such a settlement by the payment of a lump sum under an agreement which stated, “Said payments are received in redemption of the liability for all weekly payments now or in the future due me . . . for all injuries received by me on or about the 22 day of December, 1913,” was held to be a bar to a claim by the employee for compensation for loss of vision that had not been made at the time of the approval of the lump sum, even if blindness caused by the injury developed after the six months’ period and was unknown at the time of the settlement.</p>

<p>Libel, Privileged communications, Statements in pleadings. Landlord and Tenant. Pleading, Civil, Libellous statements. Attorney at Law.</p> <p>Where an attorney at law lets to another attorney at law a part of an office suite consisting of three rooms, one of which each attorney occupies as a private office, the third being used as a common waiting room, and then gambles with cards in his office during business hours, invites “a vile and disreputable woman to frequent his office, who is obscene and insulting,” and so conducts himself in his occupancy of the office and becomes so objectionable therein as to bring disgrace upon the office and to cause the other lawyer great loss and discomfort, such facts will not sustain a claim by the tenant attorney for damages in recoup- . ment in an action .brought against him for rent.</p> <p>If an attorney at law, who is a defendant in an action for the rent of a part of a room let to him for use as an office, brought by one to whom a second attorney at law had assigned his rights as a landlord, in his answer to such action admits that he hired “a part of the office” of the second attorney, which “consisted of two private offices and a common waiting room,” and that the second attorney occupied one of the offices and he the other, and further alleges by way of recoupment that the second attorney “began and continued gambling for money with cards in his said office during business hours, . . . invited and allowed a vile and disreputable woman to frequent his office, who was obscene and insulting to my clients” and “so conducted himself in his occupancy of said office and became so disreputable therein himself as to bring disgrace upon said office and cause me great loss and discomfort thereby in my business,” such allegations are not privileged, not being pertinent to any issue in the action for rent; and the second attorney by reason of them may maintain an action of tort for libel.</p>

<p>Watercourse. Municipal Corporations. Way, Public.</p> <p>If a watercourse, which originated in springs and crossed a highway and flowed upon land of an adjoining owner, was collected by the municipality charged with maintaining the highway in a culvert running under it and then flowed from the culvert and through the adjoining land in its own channel, the owner of such adjoining land cannot maintain a suit in equity against the municipality either to restrain the maintenance of the culvert or for damages.</p> <p>If a municipality charged with the maintenance of a highway constructs a culvert under it for the purpose of collecting surface water on one side of the highway and discharging it on the other side without its flowing over the travelled portion of the way, and such water after passing through the culvert thereby is discharged upon land of an adjoining owner, such adjoining owner cannot maintain a suit in equity either to enjoin the maintenance of the culvert or for damages.</p>

<p>Libel, Privileged communications. Evidence, Of ill will. Practice, Civil, Exceptions.</p> <p>If the treasurer of a corporation, when asked to do so by one formerly employed by the corporation as a shop foreman and by an agent through whom the former employee was seeking employment, answered a request for a report as to the former employee by stating in writing that he had been in the corporation’s employ for eight years, had had seventy-five or eighty men under him, was an excellent mechanic, sober and a hard worker, and was dismissed for an act of insubordination, such communication is privileged and, even if the cause of dismissal alleged was not the true cause, the former employee cannot maintain an action of libel against the treasurer unless it be shown that the mis-statement was made in bad faith and through ill will.</p> <p>At the trial of such an action for libel, evidence which tends merely to show that, immediately previous to the plaintiff’s dismissal and on the same day, the defendant had complained to him that proper results were not being obtained in his department and had seemed excited at the interview, and that, after the plaintiff had given an explanation, the defendant as he went away had “started to curse and swear,” if the plaintiff testifies that the profanity was not directed to him but had reference to other employees, is not evidence warranting a finding that the privileged communication above described was made in bad faith or actuated by ill will.</p> <p>The exclusion, at such trial, of the testimony of a witness, who did not hear the conversation between the plaintiff and the defendant above described but saw the defendant’s actions while talking, as to whether the defendant appeared to be angry, cannot be said to have been wrong.</p> <p>At the same trial, the plaintiff was not harmed when in cross-examination, in answer to a question, whether he had any doubt that the defendant wrote the facts as they were in his estimation, he answered, “ It must have been so.”</p>

<p>Probate Court, Jurisdiction, Advancement, Decree, Appeal. Widow. Contract, Antenuptial agreement. Executor and Administrator.</p> <p>Although in accordance with the provisions of an antenuptial agreement a husband by a codicil to his will devised to the wife certain specified real estate, which she agreed to accept “in full satisfaction of all right of dower or other of her rights ... in the property [of the husband] statutory or otherwise,” and of “all claims which she might have against the estate ... if she survived him,” nevertheless, upon the death of the husband and upon an appeal from a decree of the Probate Court allowing the will and codicil and the appointment of a special administrator pending the determination of such appeal, the Probate Court upon the petition of the widow has power under R. L. c. 137, § 12, to make a reasonable allowance out of the real or personal property held by. the special administrator, as an advancement for the widow’s support, such allowance not to exceed such portion of the estate as she finally will be entitled to.</p> <p>The decree upon such a petition should not direct the payment of a sum generally, but should specify that the advancement should be paid to the widow from the property to which she finally will be entitled, either under the provisions of the will or under the laws as to intestacy, and the amount ordered to be paid should be limited accordingly.</p> <p>A special administrator of an estate is a person aggrieved by a decree of the Probate Court ordering the payment from the funds of the estate of an advancement under R. L. c. 137, § 12, and is entitled to appeal from such a decree.</p>

<p>Way, Private. Deed. Evidence, Competency, Extrinsic affecting writings.</p> <p>In a suit in equity to establish the plaintiff’s right to a private way and to enjoin the defendant from interfering with it, it appeared that the defendant had owned a tract of land which he had divided into lots, making and recording in the registry of deeds a plan showing the lots, which had delineated upon it a strip eight feet wide adjacent to the lots, marked “Right of Way,” that the defendant had conveyed one of the lots to one who conveyed it to the plaintiff, both deeds stating that the land conveyed was “shown on” the plan, describing it and referring to the book and page where it was recorded, but neither of them containing any reference in words to a right of way. Held, that the plan was incorporated into the deeds by reference, and that the right of way therein described became appurtenant to the premises conveyed as clearly as if specifically mentioned in the deeds.</p> <p>The mere fact that, during a year and nine months which elapsed after the plan above described was recorded and before the deed to the plaintiff, no tenant of any of the lots shown thereon, which had been built up in one story stores, had used the way in question, was not evidence that the way had been abandoned.</p> <p>The admission, at the hearing of the suit above described, of evidence that before the conveyance to the plaintiff’s predecessor in title the defendant had conveyed the premises by a mortgage, which had contained a specific conveyance of the right of way and which, it was stated in both the deed to the plaintiff and to his predecessor in title, the title there conveyed was. subject to, was not harmful to the defendant even if erroneous, because the plaintiff’s title to the right of way was independent of the reference in the mortgage.</p> <p>At the same trial it was proper to exclude evidence tending to show that, when the defendant made the conveyance to the plaintiff’s predecessor in title, he stated that he was not conveying the right of way and that such predecessor in title bought with full knowledge that he was not acquiring such right, because there was no evidence of any knowledge on the plaintiff’s part, outside of his deed, of what took place between his predecessor in title and the defendant.</p> <p>It also was right, since the plaintiff’s title was governed by the deed he received, to exclude evidence tending to show that when the plaintiff acquired the land there was no knowledge or expectation on his part that he was acquiring the right of way in question.</p>

<p>Equity Pleading and Practice, Amendment under Equity Rule 25. Equity Jurisdiction, Suit by minority stockholders in corporation to procure enforcement of liability of directors. Corporation, Liability of directors.</p> <p>Under Equity Rule 25 of the Supreme Judicial Court, an amendment to a bill in equity in the nature of a supplemental bill must be in support of a ground for relief existing when the original bill was filed.</p> <p>Where a demurrer to a suit in equity by minority stockholders in a corporation to procure the enforcement of an alleged liability of certain directors to the corporation was sustained on the ground that it contained no allegations of a reasonable application to the directors of the corporation to institute proceedings to enforce such liability or of facts showing that such an application would have been useless, an amendment under Equity Rule 25 of the Supreme Judicial Court in the nature of a supplemental bill, alleging a vote of the directors passed six months after the filing of the original bill that no suits be brought against any directors of the corporation upon any of the grounds set forth in that bill and also alleging a vote of the stockholders at a meeting held nine months later refusing to instruct the directors to bring suits for restitution against certain of the former directors, does not cure the defects in the original bill, because such facts, even if they afford ground for bringing a new bill, do not make good a bill which thus amended shows no ground for relief existing when the bill was filed.</p> <p>In the suit above described it also was held that the votes of the directors and of the stockholders set forth in the amendment above described, if considered, failed to show that it would have been useless before the original bill was filed for the plaintiffs to have made application to the then existing board of directors or to the stockholders to protect the interests of the corporation.</p>

<p>Tort by a minor by his next friend for personal injuries sustained on March 8, 1914, from being struck by an unregistered motor car owned and operated by the defendant on Pleasant Street in Fall River. Writ dated June 1, 1914.</p> <p>In the Superior Court the case was tried before Callahan, J. It appeared that at the time of the accident there were on the defendant’s car number plates of one Fontaine, a dealer in motor vehicles. The evidence in regard to this and other circumstances of the case is described in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. If the defendant was operating-an automobile which had been placed in the care and control of a garage owner and dealer and the garage owner had placed a dealer’s plate upon the automobile, while upon the highways of Fall River and at the time of the accident, then there was no violation of the law and the automobile was lawfully upon the highways.</p> <p>“2. That the plaintiff must prove that the defendant was negligent in the operation of the automobile.</p> <p>“3. That if the defendant was operating an unregistered automobile, that said operation was only evidence of the defendant’s negligence but not conclusive.”</p> <p>The judge refused to make any of these rulings, and left the case to the jury with other instructions which are described and quoted in the opinion. The jury returned a verdict for the plaintiff in the sum of $485; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs at the sitting of the court in October, 1916, and afterwards was submitted on briefs to all the justices.</p>

<p>Negligence, Causing death, In maintaining electric wires, Invited person. Adoption. Electricity. Wires. Evidence, Opinion: experts. Practice, Civil, Exceptions. Words, “Succession to property.”</p> <p>If a boy seventeen years of age, who has been adopted by a man and wife, is killed by the negligence of the servants or agents of a corporation, in an action by the administrator of his estate tinder R. L. c. 171, § 2, as amended by St. 1907, c. 375, to recover damages for his death, his adopting parents under R. L. c. 154, § 6, have the rights that his natural parents would have in the absence of adoption and as his next of kin are entitled to receive the damages recovered.</p> <p>In the provisions of R. L. c. 154, § 6, which state the effect of an adoption, the words “succession to property” refer only to succession under the laws relating to the descent and distribution of intestate property and do not relate to the right of adopting parents as the next of kin of their son by adoption to receive the damages recovered by the administrator of his estate under St. 1907, c. 375, for negligently causing his death.</p> <p>In an action by an administrator under St. 1907, c. 375, for causing the death of the plaintiff’s intestate, a boy seventeen years of age, by negligently permitting a loose wire charged with electricity to hang upon or near a travelled highway, where the injury resulting in the death occurred before the passage of St. 1914, c. 553, if it appears that the intestate on a dark and stormy evening failed to see the wire lying in the grass near the sidewalk on which he had been walking and, thinking that the sparks emitted by it were fire-flies, stooped to catch some of the fire-flies and took hold of the live wire that caused his death, there is evidence for the jury that the intestate was in the active exercise of the care reasonably to be expected of a boy seventeen years old.</p> <p>Together with the case described above was tried an action against the city in which the highway lay, for causing the intestate’s death by a defect in the highway consisting of a loose wire charged with electricity, and there was conflicting evidence as to whether the accident occurred within the limits of the highway. A witness testified that he and the intestate were walking in the middle of the sidewalk, that the intestate stepped about two steps and stooped down and that he was about a foot in on the grass. There also was testimony that the street line at the place of the accident was about a foot from the edge of the grass on the inside of the sidewalk, which was about eight feet wide. Held, that, whether the accident occurred within the limits of the highway, was a question for the jury.</p> <p>In the same case, there was nothing to show when the wire was broken or how long it had been hanging in the street, nor was there any evidence that the city knew or by the exercise of proper care and diligence might have known of the existence of the loose wire, and it was held, that in the action against the city a verdict rightly was ordered for the defendant.</p> <p>The other actions tried at the same time were severally against the M electric company and the S electric company. There was evidence that the wire that broke and fell to the ground belonged to neither of these companies but formerly had been a part of a police telephone system belonging to a town in which one of the poles supporting it was situated, that the poles on which this wire had been supported belonged to the M electric company and that the same poles supported wires of that company and also supported wires of the S electric company carrying a high voltage of electricity, that the wire that broke had fallen into disuse and was corroded and eaten by rust, that the broken wire came in contact with one of the high tension wires of'the S electric company, that this high tension wire was old and weather beaten, that the insulation had worn off in places and that when wet it could not insulate properly the current of electricity that passed through it, and that a proper inspection of the wire that broke and fell and of the wire with which it came in contact would have disclosed the fact that they were dangerous to persons travelling on the highway below, that one of the poles supporting these wires at the place of the accident was in a town and the other pole in an adjoining city and that both of the electric companies had violated ordinances of the city and by-laws of the town by allowing the wires to be attached to the poles without permission of the municipal authorities. It was held that there was evidence of negligence on the part of each of the electric companies for submission to the jury.</p> <p>In an action by an administrator for causing the conscious suffering and death of the plaintiff’s intestate by negligently permitting an old wire which had become charged with a high power of electricity to break and fall to the ground near a travelled highway, if there is evidence that the intestate came in contact with the wire and received the shock, that he exclaimed “Oh!”, “that the yell was a very loud one, that the boy fell backward and lay about a foot over the gravel on the grass” and that afterwards he rolled upon the ground and exclaimed “O dear! ”, there is evidence warranting a finding that the death of the intestate was preceded by conscious suffering.</p> <p>In the action above described it appeared that adjoining the public sidewalk on which the intestate was walking just before the accident was an open space, and the defendant electric companies contended that, if the intestate was upon the open space when he came in contact with the live wire, he was a trespasser there and so was not entitled to recover, but it was held that, if; as the plaintiff offered to prove, it was shown that the open space had been used by the public as a playground and had been used as a common passageway by persons travel-ling between the streets on either side of it, and that such uses had been made of the open space with the knowledge and consent of the owner, it could have been found that there was an implied invitation to the public, including the intestate, to travel over it, and that, if it was shown that the open space had been used in this manner as a playground and for travel for thirty years, the defendant companies could have been found to have had knowledge of such uses and would be charged with notice that persons might be at any time on the land with the permission of the owner.</p> <p>It also was held that, if the defendants maintained or used poles upon the highway and near the line of the open space to which were attached wires carrying a high voltage of electricity, they were bound to exercise reasonable care so to maintain their wires that persons rightfully upon the land would not be injured. It also was held that, if the evidence offered by the plaintiff had been admitted and if upon that evidence it had been found that the intestate was upon the land by the implied invitation of the owner, he was there in the owner’s right and would have the same rights against the defendant companies that the owner would have.</p> <p>In the cases above described it did not appear that the defendant companies had any right to use the open space for the erection of poles and the maintenance of wires, but it was said that, if it were assumed that the defendant companies were licensees in placing their wires over the land, the question then presented would be what duty they owed to persons rightfully upon the land in the owner’s right, of whose presence there they were charged with notice.</p> <p>It further was said that, whether or not the defendant companies were rightfully upon the land, they owed to one there in the owner’s right the duty to use due diligence so to maintain and manage their electric wires that he should not be injured.</p> <p>An exception to the ruling of a presiding judge excluding expert testimony cannot be sustained where the ground of the exclusion does not appear and where the testimony offered may have been excluded on the ground that the judge was not satisfied with the qualification of the witness as an expert.</p>

<p>Appeal of George Arthur Bailey, executor and trustee under the will of his late father, George T. Bailey, from the decrees of the Probate Court for the county of Middlesex dated June 14, 1916, allowing the first executor’s account, the trustee’s substituted first account and the trustee’s second account, each with certain modifications.</p> <p>The appeal was heard by Crosby, J., who made a final decree severally affirming each of the above named decrees of the Probate Court dated June 14, 1916, and remanding the case to the Probate Court for further proceedings. The executor and trustee appealed.</p> <p>R. L. c. 150, § 14, is as follows: “An executor, administrator, guardian or trustee shall be allowed his reasonable expenses incurred in the execution of his trust, and shall have such compensation for his services as the court in which his accounts are settled may allow.”</p> <p>The case was submitted on briefs.</p>

<p>Replevin for the possession of a motor car known as a Columbia touring car, which was bought by the plaintiff from one Hixon. Writ dated March 12, 1912.</p> <p>In the Superior Court the case was tried before Brown, J. At the close of the evidence, which is described in the opinion, the judge ordered a verdict for the defendant and reported the case for determination by this court, with a stipulation which is quoted in the opinion.</p>

Contract, by F. W. Stock and Sons, a corporation, for alleged breaches of two contracts in refusing to accept certain shipments of flour. Writ dated May 12, 1911. The plaintiff’s amended declaration was as follows: “ Count 1. And plaintiff says that on October 2, 1909, the defendant gave to the plaintiff a written order for the sale and delivery by the plaintiff to the defendant, F.,0.

<p>Two actions at law, each to recover the balance alleged to be due on a witnessed mortgage promissory note for $10,000, dated November 3, 1875, originally payable in five years (afterwards extended) to the order of the trustees under the will of Horatio Davis, the first action being brought by the present trustees under that will and the second action being brought by the executor of the will of the survivor of the trustees named in the note for the benefit of the present trustees. Writs dated June 18, 1914, and April 20, 1915.</p> <p>In the Superior Court the cases were heard together by Fox, J., without a jury. The material evidence is described in the opinion. The judge found for the plaintiffs in each of the actions, and at the request of the defendant reported the cases for determination by this court, concluding his report with the following statement: “The sole question of law intended to be reserved by this report is whether or not the defendant, upon the facts and circumstances stated in this report, is discharged from personal liability on said note for the balance remaining due and unpaid thereon.”</p>

Contract to recover the sum of $514.88 for storage charges that accrued to the plaintiff on export freight arriving at Boston on various dates in 1911 and 1912 with interest from February 15, 1912, when payment thereof was demanded. Writ dated March 23, 1914.

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to Agnes White as the dependent widow of Patrick J. White, who at the time of his death was in the employ of the city of Boston as a janitor in charge of two school houses as stated more fully in the opinion, and whose death resulted from an injury received by falling to the ground when he was washing windows, the claim being made under St. 1913, c. 807.</p> <p>In the Superior Court the case was heard by Lawton, J., who made a decree affirming the decision of the Industrial Accident Board. The city of Boston appealed.</p> <p>St. 1913, c. 807, § 1, is as follows: “The Commonwealth shall and any county, city, or town, or district having the power of taxation, may pay the compensation provided by Part II of chapter seven hundred and fifty-one of the acts of the year nineteen hundred and eleven and acts in amendment thereof and in addition thereto to such laborers, workmen and mechanics employed by it as receive injuries arising out of and in the course of their employment, or, in case of death resulting from any such injury, may pay compensation as provided in sections six, seven and eight of said Part II, and in any amendments thereof, to the persons thereto entitled.”</p>

<p>Negligence, Railroad, Trespasser. Railroad. Agency, Scope of authority.</p> <p>In an action by a woman against a railroad corporation for personal injuries alleged to have been sustained at the crossing of the defendant’s railroad with a highway by reason of a freight train starting as the plaintiff, wheeling her baby in a baby carriage, was attempting to cross the tracks in front of it, the plaintiff contended that there was evidence that she was within the lines of the highway when she was struck by the train. It appeared that the entire crossing within the limits of the highway was planked between and just outside the rails of each of the tracks and that the spaces between the two tracks of the crossing were filled with dirt. The plaintiff testified that the crossing tender lifted the front wheels of the baby carriage to get over the rails of the first track and that she lifted the rear wheels to get' over the rails of the track, that they then got through the space between the tracks and that the crossing tender “lifted up the front wheels to go over that rail and I the rear. When we got to the next rail he lifted up the baby carriage to get over that rail, and I was standing in the centre between the two rails” of that track “getting ready to lift up the rear of the carriage” when the accident happened. She also testified, “I saw the sleepers under the different tracks.” Held,, that the plaintiff’s testimony showed that she was not on the planking and therefore that she was outside the line of the highway when she attempted to cross the tracks.</p> <p>It is not within the general scope of the authority of a crossing tender at a crossing of a railroad with a highway to invite a person to cross the tracks of the railroad outside the limits of the highway.</p> <p>A necessity which, within the doctrine of Campbell v. Race, 7 Cush. 408, justifies a woman in crossing the tracks of a railroad outside the limits of a highway is not created by the facts that a freight train has come to a stop on the railroad crossing with the highway, that the crossing tender has informed the woman that the train will be there for about fifteen minutes and that she wants “to get dinner.”</p> <p>In the case described above it was held that, even if a jury could have found on “patching” together the evidence of different witnesses that the plaintiff had an opportunity to cross the planking within the limits .of the highway at the end of the train, it could not have been found that she did so, because her own testimony showed that she crossed outside the planking where it was necessary to lift the baby carriage over the rails and where she “saw the sleepers under the different tracks.”</p> <p>In the same case it was held that, if it was found that the crossing had been obstructed by the freight train for more than ten minutes, this would not give the plaintiff the right to cross the railroad tracks outside the limits of the highway.</p> <p>In the same case it was held that, it appearing on the evidence that the plaintiff must have been a trespasser at the time she was injured and there being no evidence of wilful, reckless or wanton conduct on the part of the defendant, there was no evidence to go to the jury and a verdict rightly was ordered for the defendant.</p>

<p>Practice, Civil, Exceptions.</p> <p>No exception lies to the refusal of a judge before whom without a jury a case is tried on issues of fact to make findings or rulings that are founded on the assumption that the testimony introduced by the excepting party is true, as the judge has a right to disbelieve such testimony.</p>

<p>Tort for personal injuries sustained at about half past four o’clock in the afternoon of September 1, 1909, when the plaintiff, who was a child ten years of age, was walking along a path on land of the defendant near its car barn on Eagle Street in the. part of Boston called East Boston, by coming in contact with some loose wire lying on the ground and falling against an iron pole, both the pole and the wire being dangerously charged with electricity. Writ dated December 6, 1909.</p> <p>The two counts of the declaration are described in the opinion. In the Superior Court the case first was tried before Wait, J. The jury returned a verdict for the plaintiff in the sum of $10,000; and the defendant alleged exceptions, which were sustained by this court in a decision reported in 218 Mass. 76.</p> <p>The case was tried again before Dana, J. The course of the trial is described in the opinion. The jury returned a verdict for the plaintiff in the sum of $16,500, afterwards reduced to $15,000; and the defendant alleged exceptions, which are dealt with in the opinion by taking up the contentions set forth in the defendant’s brief.</p>

<p>Marriage and Divorce, Petition to vacate decree. Judgment. Superior Court.</p> <p>The Superior Court has no power to vacate a decree dismissing a libel for divorce where the court had jurisdiction, although the decree dismissing the libel was obtained by fraud and deceit practised upon the court by the giving of false testimony. Following Zeitlin v. Zeitlin, 202 Mass. 205.</p>

Contract on a policy of health and accident insurance, which originally was issued by the Protective Disability Insurance Company, and the performance of which was assumed by the Bay State Casualty Company and later by the defendant. Writ in the Municipal Court of the City of Boston dated May 10,1911.

<p>Two actions of tort by the same plaintiff against the same defendant, a constable of the city of Chelsea, the first action for assault and battery committed on January 18, 1915, when making an attachment in the plaintiff’s store on Second Street in Chelsea and the second action for malicious prosecution in the Police Court of Chelsea on February 16, 1915. Writs dated respectively February 1 and March 12, 1915.</p> <p>The proceedings in the Superior Court are described in the opinion. The cases were heard together by Wait, J., on motions made in each of the cases by the plaintiff to strike from the files an agreement for judgment and judgment satisfied and to enter judgment in accordance with the auditor’s report. The judge granted the motions and made orders to strike the agreements for judgment and judgment satisfied from the files and to enter judgments for the plaintiff in the amounts found by the auditor ($2,000 in the first case and $100 in the second case) with costs. The defendant alleged exceptions, raising the questions stated in the opinion.</p>

<p>Tort for conversion of a motor car. Writ dated September 19, 1913.</p> <p>In the Superior Court the action was tried before King, J. There was evidence tending to show that the motor car was purchased by the plaintiff as a used car from the defendant in the autumn of 1912; that at the time of delivery there still was some work to be done upon it by the defendant to put it into condition; that the plaintiff, being in haste to use the car, did not wait for that work to be done, arranging to bring the car back at his convenience, when the defendant would do the things that it had agreed to do.</p> <p>In June, 1913, the plaintiff went to Maine for his vacation and on June 16 wrote to the defendant a letter, the material portions of which were as follows: “I have instructed my chauffeur to deliver to you my six 48 Peerless T. C. for overhauling. I have told him to tell you what in his estimation should be done to it but before doing anything, I wish you to examine it thoroughly and report to me here any work to be done for which you propose to charge. '. . . I don’t know anything it needs now that you wouldn’t have had to do then, but if there is something, I want to know it and the cost, before you go ahead.” The plaintiff’s chauffeur, one Green, accordingly delivered the car to the defendant.</p> <p>The defendant replied to the foregoing letter on June 19, in part as follows: “Answering your letter of the 16th; we have had your car tested out, and submit you a list of the work which we are to charge you for. This work will cost from $650.00 to $700.00. [Here followed a long list of work for which a charge would be made and another list of two items for which no charge would be made.] If you desire the work which we are to charge you for to be done will you kindly notify us at once.” The plaintiff replied with a long letter of protest on June 20, the closing paragraph of which was as follows: “I don’t see how even the full list of things you send could cost anything like $650 or $700 and I will ask you to report to me again, before doing any work to be charged to me.”</p> <p>The defendant did not answer the plaintiff’s letter of June 20 and on June 28 the plaintiff wrote again asking for a reply.</p> <p>On June 30 the defendant dictated a letter to the plaintiff which was dated July 1, and in which it stated that its agreement with the plaintiff did not require it to make the repairs listed in its previous letter as to be paid for by the plaintiff. The letter also contained the following statements: “We received a telephone call from your chauffeur this morning asking for the car for Miss Doyle, your daughter, saying that she desired to use it for a week or so. He stated that the valve caps were leaking, and that he was unable to keep the wires in the wire bar that run from the magneto, and decided that these were too short. We have had this remedied without charge to you; also have put in the lamps and changed the wind shield brackets; this is fulfilment of agreement as per agreement.”</p> <p>On June 30 the plaintiff’s chauffeur, who was well known at the defendant’s garage as the plaintiff’s chauffeur, as he had been in the plaintiff’s employ as chauffeur for about three years, had telephoned to the garage and had inquired if the car was in condition to be taken out. He was informed by the foreman that it was and was told that he could have it. Nothing was said to the chauffeur about the necessity of bringing an order from any one for the delivery and he said nothing about bringing one. The foreman of the defendant’s garage who had held the telephone conversation with the chauffeur talked with the superintendent of the defendant and told him of the chauffeur’s request and asked if the car was ready for delivery. He was told that it was ready and that delivery could be made the next day. The superintendent said nothing to the foreman about any necessity for an order from any one authorizing a delivery. In the ordinary course of business at the defendant’s garage when a chauffeur came in with an order for a car the order would be referred to the superintendent before the car was delivered.</p> <p>The next day the chauffeur called at the garage for the plaintiff’s automobile and brought with him an order in writing signed by the plaintiff’s daughter, Mrs. Shadman, directing that the car be delivered to Green, the chauffeur. The superintendent, without inquiry as to the order, merely asked if it was the plaintiff’s chauffeur, and, when the foreman informed him that it was, he directed delivery of the car. Green took the car from the defendant’s garage to Mrs. Shadman’s garage on July 1 and it remained there until July 4, Mrs. Shadman and her husband using it on July 3. On July 4 it was destroyed while the chauffeur and some of his personal friends were on a “joy ride” and the chauffeur himself met his death in the accident.</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the defendant asked for, and the judge refused, the following rulings:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. If the defendant delivered the plaintiff’s automobile to a chauffeur employed by the plaintiff, then the plaintiff is not entitled to recover.</p> <p>“3. The defendant delivered the plaintiff’s automobile to the plaintiff’s chauffeur. Said chauffeur was the plaintiff’s agent, and in the absence of evidence to the contrary had all the authority usually possessed by chauffeurs, including the authority to take the plaintiff’s car from the defendant’s garage.”</p> <p>“6. If, by the custom of the automobile business, chauffeurs generally are regarded as agents with authority to deliver and to take out automobiles of their employers, then, in the absence of-notice from the plaintiff that the plaintiff’s chauffeur did not have authority to take out the plaintiff’s automobile, the defendant was justified in delivering the automobile to the plaintiff’s chauffeur and the defendant is not liable.</p> <p>“7. The defendant was a bailee of the plaintiff’s automobile. In order to recover the plaintiff must show a lack of ordinary care on the part of the defendant in allowing the plaintiff’s automobile to be taken from the garage and must show further that said lack of ordinary care was the primary cause of the accident which thereafter happened to the plaintiff’s automobile.”</p> <p>“9. If the plaintiff was in the habit of lending his car to his daughter and the defendant delivered the car to the plaintiff’s chauffeur on the written order of the plaintiff’s daughter, then this defendant cannot be held liable and the plaintiff is not entitled to recover.</p> <p>“10. If the defendant delivered the car to the plaintiff’s chauffeur and said chauffeur thereafter placed the car in the garage of Mrs. Shadman, the plaintiff’s daughter, to whom the plaintiff had formerly loaned his car during the summer, then the plaintiff is not entitled to recover.”</p> <p>“ 12. The plaintiff’s evidence to the effect that he had previously given a written order to his chauffeur for the purpose of having the same delivered to the defendant should be disregarded by the jury because there is no evidence that said order was ever delivered by said chauffeur to the defendant.”</p> <p>“14. It appearing from the undisputed evidence that the plaintiff’s car was delivered by the plaintiff’s chauffeur to the plaintiff’s daughter and that the plaintiff’s daughter subsequently to the delivery of said car to the plaintiff’s daughter fallowed it to be taken by the plaintiff’s chauffeur], in whose possession it was at the time of the accident, the defendant’s original delivery to the plaintiff’s chauffeur cannot, as matter of law, be held to be the proximate cause of the injury or destruction of the plaintiff’s car, and the defendant is not liable.</p> <p>“15. In order to recover the plaintiff must prove that the defendant negligently delivered the plaintiff’s car to the plaintiff’s chauffeur and that said negligent delivery was the proximate cause of the destruction or damage to the plaintiff’s car. If the plaintiff’s car after being taken from the defendant’s garage by the plaintiff’s chauffeur was delivered to the plaintiff’s daughter and was subsequently by the plaintiff’s daughter delivered to or allowed to be taken by the plaintiff’s chauffeur and was then injured or destroyed, the original delivery by the defendant to the plaintiff’s chauffeur cannot, as a matter of law, be held to be the proximate cause of the injury or destruction of the plaintiff’s automobile.”</p> <p>Subject to exceptions by the defendant, the judge gave the following instructions, asked for by the plaintiff:</p> <p>“I rule as number three, — Neither a sincere and apparently well founded belief that such a delivery (that means such a delivery as was in fact made) was right, nor the exercise of any degree of care in reaching such a belief, constitute any defence to the liability which such delivery creates.</p> <p>"That is, it is not a question of the plaintiff’s good faith in this case, or the defendant’s good faith in this case, in my judgment. It is a matter of legal right. So far as I know, and I think so far as you know, it may be said perhaps that both parties acted in good faith in the matter. At least I recollect no testimony impeaching the faith of either party; they are standing on their rights. Who shall be responsible for this loss caused by the wrongful act of the chauffeur? Where shall it fall? Each is trying, of course, to put it on the other; that is human nature.”</p> <p>“I give the plaintiff’s number four. It is not a defence to the plaintiff’s right to recover for the delivery of his automobile to a person not in fact authorized by him to receive, it, that such person apparently had such right.”</p> <p>“I will give the first part of your [the plaintiff’s] sixth. If the plaintiff caused his automobile to be delivered to the defendant by his chauffeur, and if after such delivery the plaintiff notified the defendant that he had placed his automobile in its possession for a special purpose (meaning thereby, as I suppose, to be repaired, to have work done upon it) such notice is equivalent to a notice not to deliver the automobile to the chauffeur or to any person until such special purpose had been accomplished or until the plaintiff specially ordered the re-delivery.</p> <p>“That is, they say this correspondence is notice to them that this car was delivered to you to do some work upon it, keep it until you do it or we reach an agreement, but of course that is to be taken in connection with the fact that it was competent for the plaintiff personally or by any duly authorized agent to countermand that, to change it; to say, give me up my car, I am not going to have it done, you are going to charge too much for the work; but that correspondence in and of itself does tend to show that there was under consideration special work to be done, the car wasn’t to be delivered up until that was done or some new arrangement made some modification.”</p> <p>The portion of the charge, to which the defendant excepted as stated in the opinion, which dealt with the relationship of father and daughter, was as follows:</p> <p>“I must say to you, I think, that simply because of the relationship of Mrs. Shadman to her father, it is no evidence whatever that the daughter was agent for the father to receive that automobile or to order its delivery to her or to any one else. I think that would appear clear to you, but let me push that inquiry perhaps a little bit further. Mind you, that in this case the daughter wasn’t even living with her father, wasn’t a member of his family. If the daughter had been a member of his family, then you might say that an automobile kept by the father might be presumed to be for the use of the wife and the children, the daughter, the other members of the family, and that the act of the daughter in taking an automobile of her father’s out of his garage and using it was his act because a member of the family. You might assume, perhaps, in that case that the father understood that every member of his family living with him could use it. Upon the contrary, you could not assume from that relation alone that a daughter living apart from her father, married and having a home of her own, you could not assume from that mere relationship that there was any agency whatever upon the part of the daughter, or that she had any legal right to take that car, or to order it taken at any place, to withdraw it from the defendant’s possession and take it to her own possession. The father, and he alone, had the power to determine that, if he was the owner, and it is of no consequence whether the daughter thought, because she was a daughter and because her father was in Maine, that she perhaps had the right; that is of no consequence. If she didn’t have the right, the mere fact that she thought so and acted in good faith, is absolutely of no consequence to you, gentlemen.”</p> <p>There was a verdict for the plaintiff in the sum of $2,300; and the defendant alleged exceptions.</p>

<p>Tort, by the corporation which, under a former name, was the defendant in Doyle v. Peerless Motor Car Co., ante, 561, against the daughter of the plaintiff in that action, to recover damages alleged to have resulted from the plaintiff having delivered Doyle’s motor car to his chauffeur upon an order signed by the defendant which was unauthorized by Doyle. Writ dated February 2,1915.</p> <p>In the first count of the amended declaration the plaintiff alleged that the defendant on June 30, 1913, converted to her own use an automobile, “being the property of one Alexander Doyle, and then rightfully in possession of the plaintiff.”</p> <p>The second count contained allegations that on June 30, 1913, the plaintiff had in its possession Doyle’s motor car; that the defendant was Doyle’s daughter and on that day, representing herself to be the agent of Doyle to receive the car from the plaintiff, caused to be presented to the plaintiff an order signed by her requesting delivery of the car; that the plaintiff believed the defendant to be the duly authorized agent of Doyle to receive delivery of the car and, relying on her order in writing, delivered the car to the bearer of the order, who received it and turned it over to the defendant; that on July 4 the car was totally destroyed while in the possession of the defendant or of the bearer of the defendant’s order; that the defendant never had authority to take the car from the plaintiff or to give an order for its delivery and that subsequently Doyle brought an action against the plaintiff for conversion of the car and obtained a verdict; that the plaintiff was damaged by reason of the false representations and unauthorized action of the defendant and was put to expense in defending the action of Doyle against it.</p> <p>The third count of the declaration, added at the trial, was as follows:</p> <p>“Count 3. And the plaintiff says that on or about June 30, 1913, the plaintiff had rightfully in its possession a Peerless automobile, the property of one Alexander Doyle. On or about said June 30 said automobile was wrongfully taken from the plaintiff’s possession and it was thereafter wrongfully delivered into the possession of the defendant and the defendant wrongfully assumed control of said automobile and made use of it for her own purposes. Thereafter, on July 4, 1913, said automobile was totally destroyed while being driven by the chauffeur who had been acting under the directions of and as agent of the defendant. Subsequently, the owner of said automobile, said Alexander Doyle, brought suit in this court against the plaintiff herein for the conversion of said car, and in the action brought by said Doyle a verdict was returned in his favor against the plaintiff herein for the full value of said car; and the plaintiff says by reason of the wrongful assumption of control over said car by the defendant the plaintiff herein has suffered great loss and damage, and has been put to great expense and trouble in making a defence in said action brought by said Alexander Doyle against said plaintiff, as hereinabove set forth.”</p> <p>The defendant’s original answer, after setting up a general denial, contained the following allegations:</p> <p>“Answering the second count of the plaintiff’s declaration the defendant says she admits that on June 30, 1913, the plaintiff had in its possession a Peerless automobile, the property of one Alexander Doyle, and she admits that she is the daughter of said Alexander Doyle; she denies that on June 30, 1913, or at any other time, she, representing or holding herself forth to be the agent of her father to receive from the plaintiff the delivery of said automobile, presented or caused to be presented to the plaintiff an order signed by her requesting the delivery of said automobile, but on the other hand says that she had no authority from her father to act as his agent in any particular respecting a delivery of said automobile by the plaintiff to anyone and did not represent or hold herself forth to the plaintiff as having any such authority.</p> <p>"Further answering said second count the defendant says that she denies that the plaintiff believed or had any reason to believe that the defendant was the representative and duly authorized agent of her father to receive the delivery of said automobile; she denies that the plaintiff relied upon any order written by her in delivering said car to the bearer of any order, but says the facts are that the plaintiff delivered said automobile to one Walter Green, a chauffeur, previously in the employ of the said Alexander Doyle, upon the demand of said Green, relying solely and wholly upon a custom claimed by the plaintiff to exist in Boston and vicinity among automobile repair garages to deliver automobiles to the supposed chauffeurs of owners upon the demand of such chauffeurs for delivery; she denies that the said Walter Green turned over said automobile to her.</p> <p>"Further answering said second count the defendant admits that said automobile was totally destroyed on July 4, 1913, while in the sole possession and control of said Walter Green, but she denies that at said time said automobile was in her possession or control.</p> <p>“Further answering said second count the defendant says that she admits that as a matter of fact she never had any authority whatsoever to take the automobile from the plaintiff’s garage or to give any order for its delivery, and she further says that she never represented or claimed to have any such authority; she denies that the said Alexander Doyle brought a suit against the plaintiff for conversion of said automobile by reason of the delivery of said car to the defendant, but on the other hand the fact is that the said Alexander Doyle brought said suit against the plaintiff for conversion of said automobile by the delivery thereof to the said Walter Green; she admits that in said action a verdict was returned in favor of said Alexander Doyle, but whether for the full value of the said automobile she does not know.</p> <p>"Further answering said second count the defendant says that she denies that the plaintiff has suffered great loss or damage and has been put to great expense and trouble in making a defence in said action by reason of any false or unauthorized actions of this defendant as alleged in said declaration or otherwise, and the defendant says that whatever loss or damage has been suffered, and whatever expense and trouble the plaintiff has been put to by reason of said suit, was due solely to the plaintiff’s unjustifiable attempt to defend its own illegal and wrongful act of delivering the automobile of said Alexander Doyle to said Walter Green.”</p> <p>The case was tried before Lawton, J. At the opening of the trial the defendant by her counsel asked for leave to withdraw the answer originally filed in the case and to substitute for it the answer hereinafter described, stating that the reason for the motion was that the original answer did not correctly state some of the facts, and that notice of his intention so to request had been given to the counsel for the plaintiff at least a week before the trial, and that the counsel for the plaintiff had been told that the defendant did not intend to stand upon the original answer. The judge allowed the trial to proceed upon the general denial contained in the proposed substitute answer, reserving for later determination the question of allowing the other portions of the original answer to be withdrawn and the substitution to be allowed.</p> <p>The defendant was called as a witness by the plaintiff. During her redirect examination she testified that her father had employed Mr. White, her attorney of record, to appear for her in this case and that she discussed the case with Mr. White before she testified at the trial of her father’s action against the Peerless Motor Car Company on November 24,1914; that her understanding was that her father was to pay the expense of defending the present case; that she expected that her father would pay any verdict that was rendered against her in the present case; that the whole proceedings in the former case and in the present case had been under her father’s direction and control, her husband having nothing whatever to do with it; that she gave Mr. White as counsel no instructions as to what answer should be filed in her behalf in the present case and never knew about what answer was filed; and that, after Mr. White had stated in court that her father had testified that she had no authority to give any written order, she did not know what position was taken in this present case on the pleadings concerning her having such authority.</p> <p>After the testimony of the defendant above described her counsel further conferred with the judge upon the question of allowing this motion to withdraw, and specifically called attention to the testimony of the defendant just above set forth and stated that the answ.er was drawn without consultation with his client and without her knowledge or consent, that it contained statements which were not correct, that immediately upon filing the original answer he sent a copy of it to the father of the defendant, who immediately by letter, portions of which were read, called the counsel’s attention to the fact that the statements therein contained which set forth in substance that “the defendant had no authority from her father to act as his agent in any particular respecting a delivery of said automobile by the plaintiff to any one, and did not represent or hold herself forth to the plaintiff as having any such authority,” and the further statement “that she admits that as a matter of fact she never had any authority whatsoever to take the automobile from the plaintiff’s garage or to give any order for its delivery, and that she further says that she never represented or claimed to have any such authority,” were not true, and that the answer should be changed, and that counsel advised that under the Massachusetts practice there would be no difficulty in amending the answer to conform to the facts at any time. None of the statements above made were verified by affidavit nor admitted by the plaintiff. The judge, after hearing the counsel for the plaintiff in opposition, ruled that the original answer must stand. Thereafter the original answer was read to the jury.</p> <p>Subsequently at the close of the evidence the judge ordered the proposed substitute answer filed as an amendment to the answer. This was as follows:</p> <p>"And now comes the defendant and denies each and every material allegation of the plaintiff’s writ and declaration contained.</p> <p>“And further answering the defendant says that the plaintiff is estopped to allege that it delivered the automobile of Alexander Doyle to any one but Walter Green or by reason of any act of this defendant, for that in the action of Alexander Doyle against the Peerless Motor Car Co. of New England, mentioned in the second and third counts of the declaration herein, the said Doyle alleged a conversion of said automobile by the plaintiff herein, and sought to establish a conversion by evidence tending to prove a delivery of said automobile by the plaintiff herein to one Walter Green without authority so to do from said Doyle, and the plaintiff herein set up in its answer, as its defence to the conversion charged by the said Doyle as aforesaid, an admission of a delivery to said Green, and a justification thereof solely upon the ground that the said Green was the authorized agent of the said Doyle to demand and receive delivery of said automobile. ”</p> <p>The plaintiff elected to go to the jury on the third count only.</p> <p>In the course of his charge to the jury, the judge stated as follows:</p> <p>“The defendant in her answer admits that she took it without authority and unlawfully; and I might say in passing that if anything in her testimony appears to contradict that statement in her answer you are not to consider it, and as a matter of fact whether the evidence was clear upon that matter or not, at any rate her evidence, coupled with the statements of her counsel, make it clear that what she means is that while she had the right to take it under certain circumstances, that the taking at this time under the circumstances that it was taken was unlawful on her part. At any rate, that is her statement, that is the charge of the plaintiff, that she took it unlawfully; she took it of course through Green, sending Green as her agent, and he was indeed her agent at that time, she making Green her agent and so taking the automobile herself.”</p> <p>The defendant objected and excepted to this portion of the charge; and thereupon the judge stated to the jury: “I want to correct one thing that I said in the charge inadvertently; I said that the answer states that she took it unlawfully. That word 'unlawfully’ should be withdrawn, stricken from your consideration. What she did say is that she had no authority from her father to act as his agent in any particular respecting the delivery of said automobile by the plaintiff to any one; and she further states that she did not represent or hold herself forth to the plaintiff as having any such authority. On the last part the plaintiff takes issue, as I have explained, and the burden is upon the plaintiff to' satisfy you that she did hold herself forth to the plaintiff as having such authority.”</p> <p>The defendant still insisted upon his exception.</p> <p>The judge in his charge also stated, subject to an exception by the defendant, as follows: “You are to say, in other words, if you say the plaintiff is entitled to recover, what the value of the machine was. The plaintiff is entitled to that, and the expense the action- of the defendant has subjected the plaintiff to; he is entitled, to compensation for that; those two together would constitute the amount of your verdict.”</p> <p>Other material facts are stated in the opinion. There was a verdict for the plaintiff in the sum of $3,029.77; and the defendant alleged exceptions.</p>

<p>Dog. License. Trespass. Negligence, Trespasser. Motor Car. Way, Public. Maine.</p> <p>A dog is property, for a wrongful injury to which an action will lie.</p> <p>Under the statutes of the State of Maine, which require the registering and licensing of dogs over four months of age, provide a penalty for failure to meet the requirement and empower municipal authorities to issue warrants for the killing of dogs not properly licensed, an unlicensed dog upon a highway is not a trespasser nor an outlaw.</p> <p>The owner of an unlicensed dog, which was killed by being run into by a motor car upon a highway in the State of Maine and which, under the laws of Maine, was not a trespasser nor an outlaw upon the highway, may maintain an action of tort against one, the negligence of whose servant while acting within the scope of his authority was the cause of the dog’s death.</p>

Petition, filed in the Land Court on March 1, 1913, for the registration of the title to two parcels of land in that part of Boston known as West Roxbury.

<p>Petition, filed in the Land Court on January 21, 1910, for the registration of the title to certain land in Plymouth. The respondent claimed title to a portion of the land by disseisin and adverse possession for more than twenty years.</p> <p>Issues framed on an appeal from the Land Court, as stated in the opinion, were tried in the Superior Court before Dubuque, J. The material evidence is stated in the opinion.</p> <p>At the close of the evidence, the petitioner asked for the following rulings:</p> <p>“ 1. That, upon all the evidence, the respondent did not acquire title by adverse possession, to any portion of the land claimed by the petitioner.</p> <p>“2. That, upon all the evidence, the respondent has not acquired, by prescription, the right to maintain dams or dikes upon the land claimed by the petitioner.”</p> <p>"6. That, as a matter of law, Kennard cannot acquire the right to use the land claimed by the petitioner as a reservoir.</p> <p>“7. If the jury finds that Kennard has acquired the right by adverse user continuously for twenty years or more, to maintain any dam or dike upon land claimed by said Barker, that he has not acquired the prescription right to use any land claimed by said Barker in this cause, other than land on which said dam or dike stands, as a reservoir for the storage of water.”</p> <p>“9. That any claim on the part of Kennard of a right by prescription to erect dams or dikes, either upon his land or land claimed by Mrs. Barker, can exist or be substantiated only because or under the provisions of R. L. c. 196, or of any acts in addition thereto or in amendment thereof.</p> <p>“10. That the petitioner, Mrs. Barker, has no action at common law for the recovery of damages for the erection, maintenance or use of the dams or dikes constructed, maintained or used by Kennard on her land, or any portion thereof.</p> <p>“11. That the provisions of R. L. c. 196, give Kennard no right to make any actual use as a pond or reservoir of land claimed by the petitioner.</p> <p>“ 12. That any exercise of the right of flowage conferred under the provisions of R. L. c. 196, is not the enjoyment of an easement in the land of Mrs. Barker so flowed.</p> <p>“ 13. That the exercise of such right by Kennard is not adverse to the title or possession of the title claimed by Mrs.- Barker in such land so flowed.</p> <p>“ 14. That the exercise of such right by Kennard cannot ripen into title by the lapse of time.</p> <p>“15. That, when said right has become absolute by his exercise of adverse possession for more than twenty' years, it is an easement with respect to the use of the stream only, and not an interest in or right over the land flowed.”</p> <p>The first issue, as stated in the opinion, was answered favorably to the respondent; and the petitioner alleged exceptions.</p>

<p>Workmen’s Compensation Act. Evidence, Inferences, Matter of conjecture. .</p> <p>Upon a claim under the workmen’s compensation act by the dependent mother of a boy eighteen years of age at the time of his death, who was employed as a bobbin stripper in a mill and was killed by being caught by the hanging belt of the main shaft and pulled up into the shafting, the arbitration committee found that the death of the employee was due to his trying to take some waste from a pulley on the main shaft in a manner entirely beyond the scope of his employment. This finding was based upon the uncontradicted testimony of all the eyewitnesses of the accident confirmed by the declaration of the employee just before he died. The Industrial Accident Board, after taking a view of the place of the accident and inspecting the machinery and shafting, made a finding con-i traryto the findings of the arbitration committee and contrary to the contentions both of the employer and the claimant, basing their conclusion upon the board’s declared disbelief of the testimony of every eyewitness of the accident and solely upon the inferences drawn by the board from their view of the place of the accident and their inspection of the machinery. One of the findings of the board was that the employee, when he left his machine, did so “temporarily to go to the toilet, or for some other purpose incidental to his employment,” and this inference was attempted to be founded on the single fact that the toilet and the water tank were in the direction of a certain machine that was near the place where the employee got caught in the shafting. Another finding, which was founded on no testimony, was that “the belt suddenly left the pulley” and “lashed against [the employee] as he passed.” Held, that there was no evidence to sustain a conclusion that the injury resulting in the death of the employee arose out of his employment, and that the finding of the Industrial Accident Board to that effect was unwarranted by the testimony and unsupported by any rational inferences.</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 making an award to Patrick M. Donahue who was employed by Thomas J. Flynn and Company, dealers in church goods having their salesrooms in Boston.</p> <p>The case was heard by Jenney, J. The evidence before the arbitration committee and the Industrial Accident Board is described in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p> <p>The case was submitted on a brief for the insurer.</p>

<p>Contract for breach of a contract by the defendant to accept and pay for four car loads of potatoes. Writ dated May 19, 1913.</p> <p>In the Superior Court the case was tried before Hitchcock, J. There was evidence that, after an interview between the defendant and Rupert E. McLatchy, a broker, the broker sent to the defendant on May 11, 1907, the following confirmation: “We confirm sale to you of following cars of Green Mountains, delivered in Boston at 90c per bu. viz: 4 cars H. H. ,& A. Roach, Smyrna Mills.”</p> <p>On the previous day the broker had sent the following letter to the plaintiffs: “We confirm sale for you on four cars of Mountains at Ninety cents ($.90) delivered to Lane & Co., Boston. This is the top price on Mountains up to the present time. It looks as though the market would stay where it is for a few days, as we have been offered quite a few cars at this price from other shippers.”</p> <p>There was evidence that the four car loads of potatoes were shipped from Smyrna Mills, Maine, on May 10, 14, 16 and 18, 1907, respectively, and arrived in Boston on May 17, 20, 23 and 24, respectively. The defendant received notice from the railroad company of their arrival in Boston on May 18, 21, 23 and 24 respectively. On May 28, 1907, the defendant took up and paid the draft attached to the bill of lading for the second car. This car then was unloaded in the afternoon of May 29 and the potatoes in it were sacked and weighed and reshipped in the same car to New York City. There was evidence that, instead of there being five hundred and sixty bushels of potatoes in the car, as called for by the bill of lading, there were but five hundred and four and one half bushels. There was evidence for the plaintiffs that, when shipped, the full amounts of potatoes called for by the bills of lading were in the cars, that the cars remained in the open freight yard in Boston for several days and that the natural shrinkage was about two per cent.</p> <p>On June 1 the defendant wrote to the plaintiffs as follows: “We beg to inform you that the potatoes we purchased from you acting as broker for H. H. & A. Roach, Smyrna Mills, Me., as per your confirmation dated May 11, 1907, have not been delivered to us. We ask you to deliver or have the potatoes delivered to us on or before Tuesday, June 4, 1907, or we will consider our order cancelled. We want to be fair and believe we are allowing you plenty of time. Hoping you will give this matter your immediate attention, we remain.”</p> <p>On June 4 the defendant again wrote to the plaintiffs as follows: “We would again like to call your attention to the fact that the potatoes we purchased from you acting as broker for A. M. Leavitt Co., Smyrna Mills, Me., W. H. & A. Roach, Smyrna Mills, Me., and F. H. Craig, Smyrna Mills, Me., have not been delivered to us.</p> <p>“We have already informed you in our letter to you of June 1st of this fact that we were willing to take the potatoes as agreed and asked you to have them' delivered to us on or before Tuesday, June 4th, or this day.</p> <p>“We are now ready to take the potatoes as per agreement and would ask you to deliver, or have them delivered to us. If not, we will consider the orders cancelled.</p> <p>“Please let us know at once if the potatoes are to be delivered to us. If we are to have them we want to unload them at once.”</p> <p>It was one of the defendant’s contentions, and there was evidence offered in support of it, that the defendant was not required under the custom of the trade to take up the plaintiffs’ drafts on these cars without first inspecting the potatoes and satisfying himself that they were of the kind and quality which he purchased. There was evidence that under the bills of lading as they were in this case the defendant could not inspect said cars. To meet this contention the plaintiffs called on Henry E. Pilcher, who in 1907 was chief clerk for Boston and Maine Railroad, at the Rutherford Avenue Station, in charge of incoming freight, who testified, subject to exceptions by the defendant, that the rule of the company then prohibited inspection unless it was provided for on the billing as well as the bill of lading, that “we knew that cars were being inspected surreptitiously every day, which was in violation of the railroad’s regulations,” that the-, company could do nothing and did nothing about it, and that the practice unquestionably was winked at or sanctioned by the company’s employees.</p> <p>There also was evidence that, when the alleged shortage was called to the plaintiffs’ attention, they offered to make a deposit in a Boston bank of $50 per car to guarantee the defendant that the output of the cars would be the quantity as called for in the bills of lading. The defendant declined the offer.</p> <p>The defendant did nothing more about the remaining three cars of potatoes, and the plaintiffs took possession of and sold them on June 3, 1907, for $1,124.02. The plaintiffs offered evidence tending to show that this was the best price obtainable for these potatoes in the Boston market.</p> <p>Other evidence is described in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings, which, except as stated in the opinion, the judge refused:</p> <p>“3. Upon all the evidence, the witness McLatchy was not by virtue of his being a broker authorized to bind the defendant by the memorandum of sale made by him.</p> <p>“4. The memorandum of sale relied upon by the plaintiffs did not express the terms of the contract entered into by the defendant, and therefore cannot be relied upon as satisfying the requirements of the statute of frauds.</p> <p>“5. The contract relied upon in this case was not an entire contract for the purchase of four cars of potatoes.”</p> <p>“7. It was the duty of the plaintiffs to ship the potatoes to the defendant within a reasonable time after the date of the contract.</p> <p>“8. Upon all the evidence the plaintiffs failed to ship the four cars of potatoes 'Within a reasonable time, and the defendant was not bound to accept the same.</p> <p>“9. Upon all the evidence the plaintiffs failed to ship [[the first] car ... of potatoes within a reasonable time, and the defendant was not bound to accept the same.</p> <p>“10. Upon all the evidence the plaintiffs failed to ship [the third] car ... of potatoes within a reasonable time, and the defendant was not bound to accept the same.</p> <p>“11. Upon all the evidence the plaintiffs failed to ship [the fourth] car ... of potatoes within a reasonable time, and the defendant was not bound to accept the same.”</p> <p>“13. If the jury find that [the second] car . . . contained a substantial quantity less than that called for by the invoice and bill of lading, the delivery of such car was defective, and under the terms of the contract and the circumstances of the case, such defective delivery constituted a material breach of the contract which justified the defendant in refusing to proceed further with the contract.</p> <p>“14. If the jury find that there was a custom by which dealers in potatoes when purchasing more than one car of potatoes finding one of the cars defective as to delivery, either by reason of quantity, quality or deterioration, were given the right to demand protection as to the remaining cars, before payment of the drafts on such remaining cars, such custom applied to this case, and under it the defendant was entitled to be protected against shortage in the remaining cars.</p> <p>“15. If the jury find that there was a custom requiring the seller to give protection to the buyer, under the circumstances of this case the defendant was entitled thereunder to refuse to accept the [first, third and fourth] cars . . . until such protection had been given to him.”</p> <p>“ 17. If the jury find that one of the plaintiffs acting for himself and partner agreed with the defendant to deposit with the defendant as protection against shortage in [the first, third and fourth] cars . . . $50 per car, or any other sum, his failure to do so justified the defendant in refusing to accept said cars.</p> <p>“ 18. If the jury find that the plaintiffs are entitled to recover damages, such damages are to be ascertained by taking the difference between the contract price and the market or current price at the time when the defendant ought to have accepted [the first, third and fourth] cars. . . .</p> <p>“ 19. If the jury find that the plaintiffs are entitled to recover damages, such damages are to be ascertained by taking the difference between the contract price and the market or current price at the time when the defendant refused to accept [[the first, third and fourth] cars. . .</p> <p>The jury found for the plaintiffs in the sum of $621.38; and the defendant alleged exceptions.</p> <p>The provisions of the sales act, St. 1908, c. 237, § 4, cl. 1, which, by § 78, supersede § 5 of R. L. c. 74, are as follows: “A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upward shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, nr unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”</p> <p>The case was submitted on briefs.</p>