Volume 227 — Massachusetts Reports

<p>Agency, Existence of relation, Scope of employment.</p> <p>In an action by an administrator against the owner of a motor car, for causing the death of the plaintiff’s intestate by running over him in the night time by reason of the intoxication and negligence of a chauffeur in the employ of the defendant who was driving the car, there was evidence on which it could be found that the chauffeur had been instructed by the defendant to take a helper with him and go to a garage of the defendant in a town about fifteen miles away to overhaul a car there that the defendant recently had bought, that the chauffeur at nine o’clock in the evening, on failing to find a person who had agreed to meet him at that hour to go with him as helper, determined to abandon his duties as chauffeur and thereupon drove with certain persons as guests to a hotel where they took drinks of whiskey, that then with two of his guests he stopped at the garage where the car was kept and received a message from the man he had engaged as helper that he would meet him at a certain other hotel at midnight, that the chauffeur, with his two guests and an assistant chauffeur in the employ of the defendant, then drove to the hotel named by the helper and waited there until a quarter past twelve o’clock, the chauffeur and his two guests having taken several more drinks while waiting, that the helper failed to arrive, and that then the chauffeur, who was intoxicated, started for the defendant’s garage in the town to which he had been ordered to go, intending to leave first one of his two guests and then the other at the places where they lived each in a different city on the direct route to the town where the garage was, and that shortly after he started he ran over and killed the plaintiff’s intestate. Held, that there was evidence that when the chauffeur ran over the plaintiff’s intestate he was engaged in the defendant’s business, and that the presiding judge was right in refusing to order a verdict for the defendant.</p>

Contract, begun by trustee process, wherein the Boston Five Cents Savings Bank and Edith E. Wood were alleged to be trustees. Writ dated April 25, 1914. The plaintiff propounded eleven interrogatories to the trustee Boston Five Cents Savings Bank. The treasurer answered the first two interrogatories stating his name and position with the bank.

<p>Tort under St. 1909, c. 514, § 129, as affected by St. 1911, c. 751, Part I, §§ 1, 3, by the administratrix of one who on November 5, 1914, met his death while in the employ of the defendant. Writ dated March 24, 1915.</p> <p>In the Superior Court the action was tried before Stevens, J. The material evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract by the assignee of the St. Georges Bay Fur Company for money had and received to that corporation’s use “in the form of a check of the St. Georges Bay Fur Company dated February 20,1914, in the sum of $1,000.00 signed by its treasurer, Charles E. Walker, made payable to the First National Bank, received by said First National Bank in payment of private indebtedness or for the private benefit of said treasurer, with knowledge that the said check was drawn against funds of the said St. Georges Bay Fur Company without authority.” Writ in the Municipal Court of the City of Boston dated March 29, 1916.</p> <p>On removal to the Superior Court, the case was heard by Dana, J., without a jury, upon the pleadings and an agreed statement of facts. He ruled that the plaintiff was not entitled to recover and reported the case to this court for determination. If his ruling was correct, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiff for $1,000 with interest.</p>

<p>Bill in equity, under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, filed in the Supreme Judicial Court on November 2, 1916, against William T. Marsh, Samuel H. Whittemore, Brockton National Bank, National Shawmut Bank and Sterling Motor Car Company, a Massachusetts corporation.</p> <p>The allegations of the' bill in substance were that the plaintiff was a Delaware corporation, that the defendant Marsh was a resident of the city of Brockton, Massachusetts, that the Sterling Motor Car Company was a Massachusetts corporation having its usual place of business in the city of Brockton, that “ the defendant William T. Marsh is liable to the plaintiff in the amount of about $35,000 as damages for deceit [for false representations inducing the plaintiff to enter into a contract for the purchase of a controlling interest in the Sterling Motor Car Company] or for breach of contract [in negligently and unskilfully managing the business of that corporation during a period provided by its terms for a completion of the purchase] or both,” the nature and grounds of which liability were set forth at length, and that the defendant Marsh owned a share or interest in the Sterling Motor Car Company, represented by certificates for stock which were in the control or possession of the other defendants; that on October 19, 1916, the plaintiff commenced an action at law by trustee process against the defendant Marsh and several of the other defendants as his alleged trustees, returnable on the first Tuesday of December, 1916, in the United States District Court for the District of Massachusetts, in which action the plaintiff sought to recover upon the same cause or causes of action as those alleged in this bill; that in that action the real estate of the defendant Marsh was attached; that that action was still pending; that all of the property of the defendant Marsh which had been attached in that action, whether by trustee process or otherwise, did not exceed $3,000 or $4,000 in value, and that the defendant Marsh owned no other property which could be reached to be attached at law.</p> <p>The prayers of the bill were in substance that, either with or without awaiting the termination of the plaintiff’s suit in the United States District Court for the District of Massachusetts, the liability of the defendant William T. Marsh upon the cause or causes of action set forth in this bill and the amount of such liability be determined in this suit, and that meanwhile the defendant Marsh’s interest in the Sterling Motor Car Company might be held to be applied to the payment of such liability by injunction or other appropriate process.</p> <p>Upon the filing of the bill an order of notice was issued with an ad interim, injunction restraining the defendants Marsh and Whittemore from transferring or incumbering any stock or stock certificate in the Sterling Motor Car Company. By an interlocutory decree entered November 3, 1916, this injunction was continued in force until the further order of the court and the pleadings were ordered completed on or before November 10,1916.</p> <p>On November 9, 1916, the defendants answered, and in their answers by way of demurrer alleged that the plaintiff could not and ought not to be allowed to maintain this bill during the pendency of the action at law in the District Court of the United States.</p> <p>The defendants Marsh and Whittemore also filed the following motions:</p> <p>"The defendants Marsh and Whittemore move that the temporary injunction ordered by the interlocutory decree entered November 3, 1916, in the above-entitled cause be dissolved, and for cause of such dissolution allege the following:</p> <p>“By writ dated October 19, 1916, and duly served upon the defendant Marsh on October 26, 1916, the plaintiff began against the defendant Marsh in the District Court of the United States for the District of Massachusetts an action of contract or tort, said action being brought for the same causes of action as are set out in paragraph 7 of the bill herein. The ad damnum named in said writ is $40,000. The plaintiff is a corporation organized and existing under the laws of the State of Delaware and is a citizen and resident of said State. The defendant Marsh is a citizen and resident of Brockton in the Commonwealth and district of Massachusetts. Said District Court, therefore, has jurisdiction of the parties and of the subject matter of said action, which is now, as, at all times since October 19, 1916, pending in said District Court.”</p> <p>The suit was heard by Braley, J., upon the above motions to dissolve the injunction and upon so much of the answers as were by way of demurrer to the bill. The single justice reported the case to the full court for determination, making in his report the following statement:</p> <p>"After argument of counsel I found the facts set forth in the motion to be true; and an opportunity having been given to the plaintiff to elect whether it would pursue the defendants in equity in this court or in the common law action previously pending in the federal court, and it having declined to make such election, contending that it had the right to pursue both actions concurrently, I ordered an interlocutory decree to be entered dissolving the injunction, and a final decree to be entered sustaining so much of the answer as is by way of demurrer, and dismissing the bill without costs and without prejudice.</p> <p>“The plaintiff having announced that, when entered, it intended to appeal from these decrees, at its request all questions of law involved are reported to the full court for determination.”</p>

<p>Three actions of contract against the town of Ashfield to recover taxes on personal property paid under protest by Helen Sullivan and by Helen L. Sullivan, the plaintiff suing as the assignee of each of them, the first action being for taxes assessed to Helen Sullivan for the years 1910 and 1911, the second action for taxes assessed to Helen Sullivan for the years 1912, 1913 and 1914, and the third action for taxes assessed to Helen L. Sullivan for the years 1910 and 1911. Writs dated December 14, 1912, February 15, 1915, and March 31, 1913.</p> <p>In the Superior Court the cases were tried together before Brown, J. The evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant in each of the cases and reported the cases for determination by this court.</p> <p>St. 1909, c. 490, Part I, § 5, begins as follows: “The following property and polls shall be exempted from taxation:”</p> <p>Clause 11 of that section is as follows: “The wearing apparel and farming utensils of every person; his household furniture not exceeding one thousand dollars in value; and the necessary tools of a mechanic not exceeding three hundred dollars in value.”</p> <p>St. 1909, c. 516, § 2, is as follows: “Merchandise, machinery and animals owned by persons not inhabitants of this Commonwealth or by foreign corporations and not taxable under the provisions of section twenty-three of Part I of chapter four hundred and ninety of the acts of the year nineteen hundred and nine in any city or town in the Commonwealth, but situated in this State, shall be assessed to the owner in the city or town where they are situated.”</p> <p>The cases were submitted on briefs.</p>

<p>Practice, Civil, Exceptions, Rulings and instructions. Time. Bills and Notes. Agency. Evidence, Competency, Admissions. Waiver.</p> <p>Before the first Monday in January, 1916, when Rule 46 of the Superior Court went into force, an exception to the ruling of a judge, before whom a case had been tried without a jury and who filed a decision in the absence of counsel, had to be taken within a reasonable time after notice of the decision; and what was a reasonable time depended upon the circumstances.</p> <p>In such a case before Rule 46 was in force a judge filed in Plymouth a decision for a plaintiff and the clerk of courts mailed a notice of the decision to the defendant’s counsel at Brockton, which was received on a Saturday, and thereupon the defendant’s counsel immediately wrote to the clerk asking for a copy of the memorandum of decision of the judge, if there was any, and of his rulings on the requests for rulings, and this letter was received at the clerk’s office on Monday, but was not answered. On Wednesday the defendant’s counsel wrote to the clerk, that, having received no answer to his letter, he assumed that no memorandum had been filed, that the plaintiff’s requests for rulings had been granted and that those of the defendant had been denied and he excepted to such rulings. On a petition to establish the truth of exceptions it was held that the exceptions were taken within a reasonable time and that the bill of exceptions should be allowed.</p> <p>On the petition to establish the truth of the bill of exceptions described above it was found by the commissioner that on the Monday, Tuesday and Wednesday in question the clerk and the judge were in Brockton, where the court was in session, and that the papers in the case were there, but that the defendant’s counsel did not know that the papers were in Brockton, although it was assumed by this court that he knew that the court was sitting at Brockton, and it was said, that, if it had appeared that the defendant’s counsel had known that the papers were in Brockton, where he lived, perhaps a different question would have been presented.</p> <p>In the same case it was held that, the notice of the judge’s decision having been sent by mail and received in due course, the time of its receipt must be taken as the starting point in computing the time within which the exceptions were taken.</p> <p>In the same case, it was pointed out that the clerk was notified of the defendant’s exceptions on the third secular day after the notice of the decision was received, and that, the period being less than a week, the intervening Sunday was excluded in computing the time under the established rule which was applied in Stevenson v. Donnelly, 221 Mass. 161.</p> <p>Where a judge before whom an action at law has been tried without a jury files a decision in favor of the plaintiff without passing on the defendant’s requests for rulings, this is a refusal of all the rulings requested by the defendant which are relevant and are inconsistent with the decision.</p> <p>In an action against the indorser of a promissory note, it appeared that neither the place of payment nor the address of the maker was stated in tire note so that under R. L. c. 73, § 90, cl. 3, the indorser could be held if the plaintiff proved that the note had been “presented at the usual place of business or residence” of the maker, that the maker of the note, who was a married woman, lived in a house on a county road about three and a half miles from the residence of the plaintiff and that she had a place of business on the opposite side of the road from her residence, that on the day the note was due the plaintiff went with it to the residence of the maker, going first to the front door and then to another door, knocking at both and receiving no answer, that he tried both doors and could not open them, that he did not go to the back door nor to the maker’s place of business on the other side of the road, that he saw a man standing in a stable door about four hundred feet distant, an open field lying between, that the plaintiff and this man walked toward one another and met “in the midst of an open field,” and that the plaintiff then demanded payment of the note of this man. There was nothing to show that the stable belonged to the maker or was used in connection with her residence or her place of business. Held, that the evidence failed to show diligence in demanding payment of the note by the maker, and failed also to show a demand upon the maker in person or upon her authorized agent or upon any person found at a place where presentment ought to have been made, and that the presiding judge erred in refusing to rule at the request of the defendant that “There was no presentment for payment on the proper day either at the residence or place of business of the maker of the note.”</p> <p>In the same case there was further evidence that more than six months before the attempted demand the man on whom the plaintiff made the demand in the middle of a field had been a great many times to the plaintiff’s store to buy provisions for the maker of the note and her husband, but the plaintiff did not know the name of this man and made no effort to procure his attendance as a witness at the trial. Held, that this evidence did not help the plaintiff, because an agency to buy provisions more than six months earlier had no tendency to show an agency to receive a demand for the payment of a promissory note at the time in question and at a place not shown to be either the residence or the place of business of the maker.</p> <p>In the same case the presiding judge, against the defendant’s exception, admitted evidence that the plaintiff asked the man who came from the stable about the maker and her husband and that he answered that they had gone to Boston and would be back, he thought, about six o’clock and that he “ was in charge.” It was assumed that this evidence was admitted to show that the maker of the note was “absent or inaccessible” within the meaning of R. L. c. 73, § 89, cl. 4. Held, that the admission of this evidence was error and that the exception must be sustained, there being nothing to show that the man who made the statement had any relation to the maker of the note and such statement accordingly being mere hearsay.</p> <p>In the same case it also was held that it could not be said that the errors at the trial in regard to the making of a demand on the maker of the note did the defendant no harm, although the plaintiff contended that a finding was justified that the requirement of such a demand had been waived, because for aught that appeared the judge might have based his finding for the plaintiff on a finding that there was a sufficient demand.</p> <p>In the same case it was said that it was not necessary to determine whether the evidence of a promise of the defendant to pay the note made after the note was ■ due showed that the promise was made under such circumstances of knowledge of the material facts as to justify a finding that the defendant waived the requirement of a demand upon the maker.</p>

<p>Contract, Performance and breach, Building contracts. Waiver. Damages, Recoupment. Practice, Civil, Rulings and instructions.</p> <p>In an action by a builder against a landowner on an account annexed for work and materials furnished in the alteration of a house on the defendant’s land under a contract, which the plaintiff with an honest intention had tried to perform fully but which he had failed in certain material respects to perform fully in accordance with its terms, the defendant’s answer contained a claim in recoupment for damages suffered from the plaintiff’s failure to comply with the terms of the contract. There was evidence that the defendant found fault with certain floors and that the alterations were not completed finally until four or five months after the time required by the contract, that, although the title to the land was in the defendant’s name, the defendant’s wife was the “real owner” of the property, that the defendant, after examining the building, said that, “if his wife would accept he would be satisfied,” that an interview followed between the defendant’s wife and the architect, that the defendant’s wife directed the architect to write to the plaintiff that the building was accepted, and thereupon the defendant’s wife received the keys of the house, and that shortly thereafter she and the defendant moved into the house. A judge, who heard the case without a jury, found that the defendant unqualifiedly accepted the work done and materials furnished by the plaintiff as being a sufficient compliance with the terms of the contract and waived any failure on the part of the plaintiff to perform the contract fully in accordance with its terms. Held, that the finding of the judge was warranted and that the plaintiff was entitled to recover the full amount claimed by him for work and materials without any reduction by way of recoupment.</p> <p>A judge before whom a case is tried without a jury properly may refuse to make a ruling that is a correct statement of the law, if it is inapplicable to the facts of the case as found by him on evidence warranting such findings.</p>

<p>Contract on a policy of fire insurance. Writ dated August 25, 1914.</p> <p>The proceedings in the Superior Court are described in the opinion. The “Memorandum and Order” there described discontinuing the action as to the defendant and awarding costs to the defendant was made by Hitchcock, J.</p>

<p>Workmen’s Compensation Act. Words, “Mechanics.”</p> <p>An instructor employed by a city, that has accepted St. 1913, c. 807, at an annual salary in the motor vehicle department of an industrial and vocational school, whose duty is to instruct boys in mechanics, English, arithmetic and civics, and who, where it is possible, instructs them in all kinds of motor vehicle repairing and at times gives a practical demonstration himself as to how the thing is done, is not a laborer, workman or mechanic within the meaning of the statute.</p>

<p>Petition for disbarment filed in the Superior Court on May 18, 1905.</p> <p>The previous stages of the case and the reported decisions of this court thereon are referred to and cited in the opinion, where also the attémpt to bring the case before this court for a fifth time is described.</p>

<p>Tort for personal injuries sustained by the plaintiff between five and half past five o’clock in the afternoon of April 18, 1913, when the plaintiff on foot was crossing Summer Street in Boston near the corner of Chauncy Street, by being run into by a motor car belonging to the defendant and driven by one Munroe alleged to have been the servant or agent of the defendant. Writ dated June 16, 1913.</p> <p>In the Superior Court the case was tried before Stevens, J. The bill of exceptions contained the following statements: "There was evidence tending to show that the plaintiff was lawfully travelling upon the public highway and was at all times in the exercise of due care. There was also evidence tending to show negligence on the part of the person then operating defendant’s automobile and that as a result of the collision the plaintiff sustained bodily injuries.” The defendant was called as a witness by the plaintiff and gave the testimony which is described in the opinion. Munroe was called as a witness by the defendant. The testimony of these two witnesses was all the evidence introduced either by the plaintiff or the defendant upon the question whether at the time of the accident Munroe was operating the motor car as the agent of the defendant.</p> <p>At the close of the evidence the judge ruled that there was not sufficient evidence to warrant the submission of the case to the jury upon the question mentioned above. He ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Double compensation, Practice.</p> <p>The negligence of a subscriber under the workmen’s compensation act in furnishing for the use of its employees an elevator so thoroughly out of repair as to be unsafe and in permitting the use of this elevator when its superintendent considered that it was in a “dangerous condition” does not warrant a finding that an employee injured by the falling of this elevator when he was using it in the course of his employment was “injured by reason of the serious and wilful misconduct of a subscriber or of any person regularly entrusted with and exercising the powers of superintendence ” within the meaning of St. 1911, c. 751, Part II, § 3, so as to entitle him to a double compensation.</p> <p>In a claim under the workmen’s compensation act in which an award has been made doubling the amount of compensation to be paid to the injured employee on the ground that he was injured by reason of the serious and wilful misconduct of his employer within the meaning of St. 1911, c. 751, Part II, § 3, if all the evidence is reported, it is a question of law whether a finding that the employer was guilty of serious and wilful misconduct was warranted by the evidence.</p> <p>Where in such a case it was held that this finding was not warranted so that an award doubling the amount of the compensation to be paid to the injured employee was erroneous, but the award in all other respects was warranted by the evidence, it was ordered that the decree be modified by deducting the excess, leaving the award to stand as if the compensation had not been doubled.</p>

<p>Distribution of Obscene Literature. Advertising Means for Prevention of Conception. Constitutional Law. Words, “Advertises.”</p> <p>A count in an indictment charging the defendant with the violation of R. L. c. 212, § 20, as amended by St. 1913, c. 259, by distributing pamphlets entitled “Why and How the Poor Should not have many Children” and “Don’t have Undesired Children,” containing “obscene, indecent and impure language, manifestly tending to corrupt the morals of youth, the same being too lewd and obscene to be more particularly set forth,” supported by a bill of particulars filed under R. L. c. 218, § 39, containing copies of the pamphlets named in the indictment, is sufficient.</p> <p>A count in .an indictment, supported by a bill of particulars, charging the defendant with the violation of R. L. c. 212, § 26, by advertising certain enumeiated drugs, medicines, instruments and articles for the prevention of conception, and a count charging the defendant with the violation of R. L. c. 212, § 16, as amended by St. 1905, c. 316, by knowingly circulating, distributing and publishing a pamphlet, described by its title, containing words conveying notice, hint or reference to places where designated means for the prevention of conception may be obtained, in each count following the words of the statute, are sufficient.</p> <p>The statutes named above under different sections of R. L. c. 212, as amended, contravene no provision of the Constitution and each of them is a proper exercise of one of the most obvious and necessary branches of the police power.</p>

<p>Petition, filed in the Supreme Judicial Court on January 10, 1917, under St. 1909, c. 490, Part III, §§ 70, 71, for the abatement and refunding of a tax paid under the circumstances stated in the opinion.</p> <p>The case was heard upon the petition, answer and agreed facts by Pierce, J., who reserved it for determination by the full court.</p>

Contract or tort for the amount of a deposit with the defendant alleged to have been paid improperly to the plaintiff’s husband upon an order signed by her when she was insane. Writ in the Central District Court of Northern Essex dated January 3, 1911. On appeal to the Superior Court the case was tried before Bell, J. The material facts and answers of the jury to special questions submitted to them are described in the opinion.

<p>Contract, Of employment. Agency, Employee’s duty of obedience.</p> <p>At the trial of an action against a corporation for breach of a contract m writing for employment of the plaintiff by the defendant as general superintendent of its factory for three years, through his discharge within four months, it appeared that the plaintiff had refused to attend a meeting of the defendant’s board of directors and that thereafter the defendant discharged him, and there was evidence that the plaintiff’s refusal to appear before the directors was not the real reason for his discharge but a pretext seized upon by the directors to justify them in putting an end to a contract which for other reasons they desired to terminate, that relations were strained between the plaintiff and the defendant’s board of directors, that the meeting of the directors was held in a city thirty-two miles distant from the factory in the law office of the defendant’s counsel and apparently was not called for a conference but to subject the plaintiff to an examination by the attorney and that the notice of the meeting to the plaintiff did not state its purpose; and there was no evidence that any provision of the contract of employment or any rule or custom required the plaintiff to attend meetings of the defendant’s directors. The judge refused to grant a request of the defendant for a ruling, in substance that, if the plaintiff refused to appear before the defendant’s board of directors after sufficient notice, such refusal justified his discharge and barred the plaintiff from recovering on the contract. Held, that the refusal was proper, as the ruling requested assumed the existence of facts in dispute on the evidence, namely, that the real cause of the discharge was the refusal to attend the meeting and that under the circumstances the refusal was so serious a breach of duty as to warrant the discharge.</p>

<p>Bills and Notes, Demand note, Presentment. Words, "Reasonable time.”</p> <p>At the trial of an action by the payee of a demand note, a bank, against an indorser, the wife of the maker, there was undisputed evidence that previous notes of the husband to the same bank, indorsed by the defendant, had been time notes and had been paid or renewed at maturity; that the defendant knew nothing of the business dealings of her husband or that he had paid interest on the note; that she never had been in the bank’s place of business; that the maker’s place of business was within three hundred feet of the bank; that almost eight months after the date of the note he had made an assignment for the benefit of his creditors, and that the bank made no demand for payment of the note until a year and two months aftec-its date. There was no evidence of a usage of trade or business as to what was a reasonable time within which demand should have been made. Held, following Merritt v. Jackson, 181 Mass. 69, that there could be no recovery against the indorser because on the undisputed evidence demand for payment of the note was not made within a reasonable time, namely, within sixty days of its date.</p>

<p>Landlord and Tenant, Covenant in lease.</p> <p>At the hearing by a judge without a jury of an action by a lessee under a written lease to recover back money paid as rent in advance under the lease, it appeared that the lease contained a covenant that the lessor would “fix up the demised premises ... in good satisfactory condition,” which was understood by the parties to mean that the work would be done before the beginning of the term of the lease; that nothing in the way of fixing up was done by the lessor before the beginning of the term; that the lease contained stringent covenants binding the lessees after the beginning of the term as to keeping certain portions of the premises repaired and in good condition and as to saving the lessor harmless from loss, liability or expense incurred, suffered or claimed by reason of gas, ■ water, electricity, snow or ice, or injury or damage to persons or property upon or in transit to the demised premises, and for nuisances. The judge found that performance of the covenant to “fix up ” the premises was a condition precedent to the vesting of the estate in the lessee, and found for the plaintiff. Held, that the findings were warranted.</p>

<p>Guardian. Parent and Child. Probate Court, Jurisdiction, Appeal.</p> <p>A woman, not related to a child eight years of age, filed in the Probate Court for the county wherein the child lived with her mother a petition, which was assented to by the mother and which contained an allegation that the father, who lived in another State, was unfit to be the child’s guardian and a prayer that the petitioner be appointed such guardian with custody of the child. A citation was issued to and was received by the father, which contained no mention of the allegation of the father’s unfitness. The mother died before the return day of the citation. There was no appearance by or on behalf of the father and the Probate Court granted the petition, the decree containing the statement that it appeared that the father of the child “has had due notice, according to the order of the court” and that the mother “has assented thereto.” On an appeal from a decree dismissing a petition by the father for revocation of the decree of appointment, it was held, that the Probate Court under R. L. c. 145, § 4, as amended by Sts. 1902, c. 474; 1904, c. 163, had authority to order the issuance of the citation above described and to adjudge the notice thereby given to the father to be sufficient, the fact that the citation contained no reference to the allegation of the father’s unfitness not making it invalid.</p> <p>It further appeared that the citation above described was directed to "John J. H. one of the next of kin” of the minor, instead of to “John H. H.” as the minor’s father. Held, that such misnomer did not deprive the court of jurisdiction, the object of the citation having been accomplished when the notice was received by the father in time for him to appear and contest.</p> <p>The strict rules of the common law as to pleading and practice do not obtain in the procedure of courts of probate.</p> <p>The jurisdiction of the Probate Court to make a decree appointing, as guardian of a child under fourteen years of age with custody of the person, one not related to the child, where the mother assents to the appointment and the father has proper notice of the pendency of the petition, is not affected by the fact that the father, upon receiving the notice, gave it to an attorney with instructions to contest the appointment and that the attorney failed to do so.</p> <p>Reasons for an appeal from a decree of the Probate Court dismissing a petition for the revocation of a decree of guardianship on the ground of lack of jurisdiction, which are based on issues not raised by the allegations of the petition, cannot be considered.</p> <p>It also was held that the Probate Court had jurisdiction of the subject matter of the petition for guardianship above described and of the parties, and that, the allegations of the petition having been found to have been true, the' decree could not be set aside on the petition of the father for its revocation, although, if the father had appeared to contest its allowance, the result might have been different.</p> <p>The mere fact, that the guardian, with custody of the person, of a girl under fourteen years of age, whose mother is dead and whose father is living, brings up the child as a member of the Baptist Church contrary to the wishes of the father, who is a member of the Roman Catholic Church, where it appears that the mother when living and the guardian both attended the Baptist Church and it appears reasonably certain that the child’s welfare and happiness do not require a present change of guardianship and it does not appear that the child’s conscience ever has been subjected to constraint, does not require as a matter of law that a petition by the father for the removal of the guardian be granted.</p> <p>It was not intimated, however, that the provision in the decree of guardianship giving control of the child to the guardian might not be reviewed in the light of subsequent events if the welfare and happiness of the child required it.</p>

<p> Sanatoriums for Tubercular Patients. Pauper. Rutland State Sanatorium. Municipal Corporations. </p> <p>In an action brought by the Attorney General in the name of the Treasurer and Receiver General against a city under St. 1907, c. 474, § 10, as amended by St. 1912, c. 17, to recover $4 a week for the support in the Rutland State Sanatorium of a tubercular patient having a settlement in the defendant city, where no question has been raised as to the good faith of the trustees and physicians in admitting the patient to the sanatorium, it is right for the presiding judge to exclude evidence offered by the defendant as tending to show that the patient was not suffering from tuberculosis nor from any disease dangerous to the public health while she was an inmate of the sanatorium.</p> <p>In the same case it was held that there was no ground for the contention that in order to hold the defendant liable for the support of a patient having a settlement in that city it must be shown that the trustees admit to the Rutland State Sanatorium only persons whose tubercular condition is beyond doubt.</p> <p>It was said that, assuming that the question was open to the defendant, the regulations, shown to have been adopted by the trustees of the Rutland State Sanatorium for the admission of inmates and followed in the present case, whereby the treatment for tuberculosis begins before the incipient stage of the disease is passed and before bacilli appear in the sputum, were within the authorized powers of the trustees and were reasonable in the light of modern principles of preventive treatment.</p>

<p>Tort, originally against W. D. Quimby and Company, Incorporated, a corporation, and William D. Quimby, for personal injuries sustained by the plaintiff on June 20, 1913, by reason of a heavy piece of glass, which had become detached from the candy show-case of the defendants in the Henry Siegel Company’s store in Boston, falling upon the plaintiff’s right foot. Writ dated March 10, 1914.</p> <p>Later the plaintiff discontinued her action against the W. D. Quimby and Company, Incorporated, leaving William D. Quimby, individually, as the sole defendant.</p> <p>In the Superior Court the case was tried before Chase, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for him. The judge refused to do so, and submitted the case to the jury.</p> <p>In the course of his charge the judge instructed the jury as follows:</p> <p>“The question is in this case, this element of it, how long had it [the defect in the show-case] existed. Had he [the defendant] had, as a man who was bound to exercise reasonable care for the safety of the people whom he had invited there, a reasonable opportunity to discover this defect, if it existed? And that involves, as I said a moment ago, the question of duration of time during which the defect had existed. When had this defect arisen? Who was responsible for the condition? Was the attention of the defendant Quimby called to this? If it wasn’t, should it have been? If the defect existed when he began business there that morning, should he or some of his employees there whose duty it was — as they ' have testified — to look out for the counter and clean it, have noticed it? And having noticed it, should they have reported it? Those are the questions.</p> <p>“Now, if you find that the place was not reasonably safe, and if you find that Mr. Quimby or his employees knew it or ought to have known about it in the exercise of reasonable care for the safety of their customers, then the question comes, Was the defendant negligent in not warning the plaintiff of this defect?”</p> <p>The defendant excepted to the part of the charge in which the judge "began the sentence, *Tf the defect existed there that morning,’ something like that.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $850; and the defendant alleged .exceptions.</p>

<p>Agency, Undisclosed principal. Election. Evidence.</p> <p>In an action for goods sold and delivered to the defendant as the undisclosed principal of the defendant’s brother, who had pretended to buy the goods from the plaintiff for himself, where the plaintiff introduces evidence warranting a finding that the defendant’s brother was in fact the agent of the defendant to buy goods for him, that the store at which the goods were delivered belonged to the defendant and that the goods purchased from the plaintiff were offered for sale there by the defendant, and where the plaintiff also shows that the defendant’s brother stated that the defendant was merely a clerk in the store and knew nothing about the business, it is right for the trial judge to refuse to rule, that the plaintiff by charging the goods to the defendant’s brother and by demanding payment of the purchase money only from him, before the plaintiff discovered that the brother was acting as the agent of the defendant, made an election to accept the defendant’s brother as his debtor, there being no election unless the plaintiff’s action was taken after he knew with reasonable certainty that the defendant was the undisclosed principal in the transaction, and it being a question of fact whether the plaintiff had such knowledge.</p> <p>In the case above described there was evidence that the defendant, when solicited by the plaintiff to buy the goods from the plaintiff, had said that his brother “ did the buying for the concern,” and it was held that this in connection with the other evidence described above warranted a finding that the defendant’s brother was the agent of the defendant and had authority to bind him.</p> <p>In the same case it was held that the declarations of the defendant’s brother as to his place of business, the reasons that he gave for being without a rating in mercantile agencies, his assertions of personal honesty, his production of cancelled notes, his statement that the defendant knew nothing about the business and his representation that the defendant was simply a clerk in the store were admissible in evidence as oral and other acts incidental to the declarant’s application for credit, and that they also were admissible to show the declarant’s state of mind, his relation of agent for the defendant as undisclosed principal having been established by other evidence.</p>

<p>Contract, for the alleged breach of a contract in writing in the Russian language, a translation of which was attached to the record and is printed below, dated and executed in Russia on September 18, 1915. Writ dated February 4, 1916.</p> <p>In the Superior Court the case was tried before Chase, J. The translation of the contract was as follows:</p> <p>“Petrograd. One thousand nine hundred and fifteen. September eighteenth. We, the undersigned, the nobleman, Sergei Pavlovitch Diaghileff, of the first part, and the artist of the Imperial Moskow Theatres, Xenia Petrovna Makletzova, of the second part, have concluded between them the present contract as follows:</p> <p>“1. Diaghileff invites Makletzova and Makletzova accepts the invitation to take part as premiere danser in performances to be arranged by Diaghileff from the eighteenth day of January (new style) nineteen hundred and sixteen to the first day of May (new style) nineteen hundred and sixteen in North America. Besides as aforesaid Makletzova is obliged to go to the City of Luzane or to some other city to be chosen by said Diaghileff on the first day of November (old style) nineteen hundred and fifteen for rehearsals of ballets and to take part in two charity performances to be given by Diaghileff.</p> <p>“2. In the performances to be arranged by Diaghileff, Makletzova shall perform the most important róles in the ballets:—• “L’Oiseau de Feu” (The Bird of Fire); “Pavilion d’Armide” (Armide’s House); “Les Sylphides” (The Nymphs); “Carnival;” “Petrouchka;” and “Dafins and ICloia.”</p> <p>“3. From the date of the conclusion of this agreement and to its termination, and in case this agreement is extended then to the period of its extension, Makletzova obliges herself that she will not dance nor do anything in her profession, publically [sic] or for private persons, or for moving picture films, whether for compensation or without compensation, and shall not place herself under the direction of any person except without [sic] the express written permission of Diaghileff.</p> <p>“4. For the performance of the work mentioned in paragraph one of this agreement, Diaghileff is to pay to Makletzova the sum of seventeen thousand (17,000) rubles, to be paid to her every two weeks, beginning with the first performance in North America, in equal payments. In addition, the said Diaghileff obliges himself to pay to Makletzova from the day she is leaving Petrograd up to the first performance in North America, two thousand (2000) francs per month, to be paid her every two weeks one thousand (1000) francs each, and to pay her railroad fares and steamship ticket, first-class, wherever she may go for the purpose of performing during the above mentioned season, and a return ticket from that city where the season will end to Moskow, and also steamship passage from Europe to America and return for her mother.</p> <p>“5. The sickness of Maldetzova is here acknowledged and in that case she shall not be obliged to perform under this contract, the said Diaghileff to retain two hundred (200) rubles for each performance that she may not attend.</p> <p>“6. Diaghileff obliges himself to pay to the Directorate of the Imperial Moskow Theatres liquidated damages due from Miss Makletzova in the sum of two thousand (2000) rubles if said Directorate of the Theatres demands the same. The said Diaghileff further obliges himself to give said Makletzova an advance of three weeks before she leaves Petrograd in the sum of three thousand (3000) rubles.</p> <p>“7.' In case of a breach of this agreement the offending party sha.11 pay to the offended party as damages in the sum of eighteen thousand five hundred (18,500) rubles, and in addition thereto, in case any one of the parties shall commit a breach of any of the first four points of this agreement, the other party has the right to consider herself released from the further performance of this contract.</p> <p>"8. Makletzova shall appear at an evening performance in not more than two ballets. Matinee performances shall take place only once a week and Makletzova shall appear in only one ballet. Diaghileff has the right to arrange performances daily except Sundays. "</p> <p>"9. Diaghileff has the right to extend this contract to the first day of September (new style) nineteen hundred and sixteen if mutually satisfactory.</p> <p>"10. In case Miss Makletzova does not appear at one of the matinees, said Diaghileff has the right to retain one hundred (100) rubles for each performance-</p> <p>Sergei Pavlovitch Diaghileff.”</p> <p>The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to give to the jury the three instructions which are quoted in the opinion. The judge refused to give any of these instructions and also refused to give other instructions requested by the defendant, the exceptions to the refusal of which were waived. The judge submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $4,500 "and in answer to questions propounded to them by the court found that the plaintiff had not broken the contract but that the defendant had.”</p> <p>The defendant alleged exceptions, which contained the statement quoted in the preceding sentence and also contained the following stipulation: "It is further stipulated between the parties that, if the defendant’s exceptions are overruled, the Supreme Judicial Court shall then decide whether paragraph 7 of the contract ... is to be construed as one fixing a certain sum as liquidated damages. Upon this point, too, the plaintiff introduced evidence by one Mrs. Aline Delano, an expert in the translation of Russian documents, who testified that the Russian word translated in Paragraph 7 as damages did not mean penalty nor indemnity but damages for breach of a contract. If the Supreme Judicial Court shall decide that said paragraph 7 fixes the sum therein named as liquidated damages, judgment for the plaintiff is to be ordered in the sum of $6,012.50 with interest; otherwise, judgment for the plaintiff upon the verdict.”</p>

<p>Three actions of tort, each by a longshoreman, for injuries sustained oh December 17, 1913, by falling through a defective hatch cover on a vessel of the defendant when engaged in the employ of a stevedore in unloading the vessel lying in the defendant’s dock. Writs dated June 1,1914.</p> <p>In the Superior Court the cases were tried together before Hall, J. The evidence is described in the opinion, where also are stated the defendant’s requests for rulings which were denied by the judge. The jury returned a verdict for the plaintiff in each of the cases, in the case of Ford in the sum of $2,500, in the case of Buckley in the sum of $1,100 and in the case of Campbell in the sum of $2,170.84. The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Contract or tort to recover damages for negligence or breach of the defendant’s contract as a carrier whereby the plaintiff received personal injuries by being pushed against a brake wheel of one of the defendant’s cars while boarding the car in the South Terminal station at Boston on December 24, 1912. Writ dated October 2, 1914.</p> <p>In the Superior Court the case was tried before Keating, J. The material evidence is described in the opinion. At the close of the plaintiff’s evidence the judge subject to an exception by the plaintiff ordered a verdict for the defendant and reported the case for determination by this court.</p>

<p>Lowell. Civil Service. Mandamus. Words, “Measure.”</p> <p>The provision of the charter of the city of Lowell, St. 1911, c. 645, § 40, giving to the municipal council power " under the laws regulating the civil service to suspend or remove any executive or administrative officer or head of a sub-department it has the power to appoint, for such cause as it shall deem sufficient,” requires that in such suspension or removal the council shall comply with St. 1904, c. 314, as amended by St. 1905, c. 243.</p> <p>Consequently an attempt by the municipal council of Lowell to remove such an administrative officer without notifying him, as required by St. 1904, c. 314, § 2, of the proposed action and furnishing him with a copy of the reasons alleged to constitute the “just cause,” which under § 1 must be the basis for removal, and giving him a public hearing if he requests it in writing and an opportunity to answer the charge against him either personally or by counsel, is of no effect, and on a petition by the officer a writ of mandamus may be issued in the discretion of the court ordering his reinstatement.</p> <p>The giving, to the officer proposed to be removed, of the notice above described and of the opportunity to be heard are conditions precedent to a valid removal, and therefore the fact, that, after the passage by the municipal council of Lowell of an order of removal of such an administrative officer, the officer knew of it and remained in office until the expiration of ten days without demanding a hearing, does not render the removal valid.</p> <p>The word “measure” in § 28 of the charter of the city of Lowell, St. 1911, c. 645, requiring that when the municipal council^shall pass any measure, such measure, with a specified exception, shall take effect at the expiration of ten days from its passage, does not include an order for the removal of an administrative officer under § 40 of the charter.</p> <p>In this case the order for removal was held not to have been intended to be a proposal of action, but to be final action, it appearing that other persons, immediately upon the passage of the orders, were elected to fill the vacancies thus attempted to be created.</p> <p>The remedy given by St. 1911, c. 624 as amended by St. 1915, c. 251, to persons occupying offices classified under the civil service, who wrongfully have been removed therefrom, through a petition for reinstatement in'a police, district or municipal court, is not applicable and does not furnish adequate remedy to administrative officers appointed under §§ 37, 39 of the charter of the city of Lowell, St. 1911, c. 645, upon an illegal attempt by the municipal council to remove them under § 40 without complying with the civil service rules; and therefore such officers may maintain petitions for writs of mandamus ordering their reinstatement.</p>

Contract, with a declaration in four counts, and first and second counts being upon two guaranties in writing of the payment t„o the plaintiff of balances upon open accounts which H. S. Littlefield Company might owe the plaintiff from time to time. The third count was for an amount alleged to be owed by the defendant to one Oakes, a plumber, which Oakes had assigned to the plaintiff. The fourth count was upon an account annexed including the items in the other three counts.

<p>Jurisdiction. Interstate Commerce. Negligence, Employer’s liability, Federal employers’ liability act. Evidence, Matters of common knowledge.</p> <p>No action can be maintained under St. 1909, c. 514, §§ 127, 129, against a railroad corporation by the widow of an employee of the corporation for causing bis death instantaneously, where it appears that one of the duties of the employee was to receive mail at a city in this Commonwealth from a train engaged in interstate commerce, if it appears that the employee was killed by the train while crossing a track on the way to perform his duty of receiving the mail after having performed another duty of closing gates over a highway nearby, the sole right of recovery, if any, under such circumstances being under the federal employers’ liability act, 35 U. S. Sts. at Large, c. 149.</p> <p>The interstate transportation of mail is interstate commerce.</p> <p>It is a matter of common knowledge that railroad corporations carry mail under contracts entered into with the federal government authorized by statute, and that such transportation is paid for in accordance with the terms of such contracts.</p>

<p>Contract, Construction. Practice, Civil, Waiver by conduct at trial. Waiver.</p> <p>A roofing contractor, who had placed roofing material upon certain houses under a contract containing a guaranty, afterwards caused his business to be incorporated and became the president, treasurer and foreman of the corporation. The owner of the houses having complained to him that the roofs were leaking, the corporation, acting through the contractor, made the following proposition to the owner: “We propose to furnish material and labor for repairing all leaks . . . and recover same with a trowel course . . . for the total sum of $105. We guarantee to maintain the above work absolutely water tight, ten years from the date of completion, upon written notice of any defects thereof.” The owner accepted the proposal and paid the $105. Leaks occurring, the corporation, upon general notice, repaired the defects for a time and finally refused to repair further, basing its refusal upon an alleged failure of the owner to pay the $105 and not making any complaint as to the sufficiency of the notice. The owner brought an action against the corporation for a breach of the warranty, at the trial of which the defendant in no way contended that its warranty was confined to leaks in the roof which existed when its contract was made and which it then repaired. Such a contention it did urge, after a verdict for the plaintiff, upon the argument of exceptions in this court. Held, that, under all the circumstances and in view of the practical construction put upon the contract by the parties themselves, such contention was not open, it appearing that the contract of the corporation was to cover and assume the contract of its president and treasurer, to whose business it had succeeded.</p>

<p>Two actions of contract upon policies of fire insurance in the Massachusetts standard form to recover the insurance on property destroyed by fire on October 5, 1908. Writs dated July 19, 1909.</p> <p>In the Superior Court the cases were tried together before Hitchcock, J. The material evidence is described in the opinion. At the close of the plaintiffs’ evidence the judge ordered verdicts for the defendants; and the plaintiffs alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action for personal injuries received by the plaintiff while-in the employ of the defendant upon a dredge in the State of Maine, the plaintiff contended that his injuries were caused by negligence of a superintendent of the defendant and that he had a right to recover under the provisions of the employers’ liability act of the State of Maine, and it appeared that the material provisions of that act were in substance like those of the corresponding Massachusetts act. There was evidence that it was one of the plaintiff’s duties to oil the central bearing of an engine upon the dredge after the lunch hour, that it was the duty of the superintendent to start and stop an engine which operated the dredge, that it was customary for the superintendent not to start the engine after the lunch hour until the plaintiff had notified him that all was clear, that it was known not to be safe to oil the central bearing when the engine was in motion and that, without receiving any notification from the plaintiff, the superintendent started the engine while the plaintiff was oiling the central bearing, causing the plaintiff’s injury. Held, that a finding was warranted that the superintendent was negligent in determining to start the engine without notification from the plaintiff.</p> <p>It also was held that, while the mere act of starting the engine was one of manual labor on the part of the superintendent for which the defendant would not have been liable, such act was preceded by the forming of a determination to start the engine which was an act of superintendence, which might have been found to have been a negligent act and for which the defendant might have been found liable.</p>

<p>Evidence, Competency, Book entries, Admissions. Negligence, Employer’s liability, Federal employers’ liability act. Interstate Commerce. Agency, Existence of relation.</p> <p>At the trial of an action of tort against a railroad corporation under the federal employers’ liability act to recover damages for the death of a conductor of a train of the defendant, where, upon the question whether at the time of the injury resulting in the death of the conductor the train of which he had charge was engaged in interstate commerce, an employee of an express company has testified that he had in his charge upon the train certain packages, that all that he knew as to the places from which and to which the packages were being shipped was derived from marks upon the packages and way bills accompanying them and that he made a transcript of these entries from the way bills to a book kept by him, such testimony does not render the book and its entries competent evidence to show, from entries therein, that some of the packages came from without the State and were being carried in a continuous shipment to be delivered within the State.</p> <p>The book and entries above described, while made in the usual course of business by the employee of the express company, were not required by law to be made, were not shop books and were not entries “in an account . . . book ” within the meaning of St. 1913, c. 288.</p> <p>Neither the entries above described, nor an entry on a “delivery sheet” showing to whom according to the way bill a certain package was to be delivered, were admissible as secondary evidence to prove the contents of way bills issued by the express company and to show that the train in question was engaged in interstate commerce, where it did not appear that the express company in issuing the way bill acted as agent or by authority of the railroad corporation.</p>

Petition, filed in the Supreme Judicial Court on December 20, 1915, by an inhabitant of the city of Boston owning real estate abutting on Main Street, in that part of Boston called Charles-town, in front of which is the elevated structure of the Boston Elevated Railway Company, for a writ of mandamus directing the Boston transit commissioners “to commence the construction of a tunnel or subway forthwith in accordance with Spec.

<p>Contract, What constitutes, Performance and breach. Practice, Civil, Judge’s charge.</p> <p>In an action of contract by a theatrical manager, against another theatrical manager and the proprietor of a certain theatre, to recover $500 a week for the period of the production by the defendant manager of a certain play at the theatre of the defendant proprietor, in consideration of the plaintiff giving up his right to produce a certain play at that theatre on and after a certain date and thus permitting the play of the defendant manager to continue its successful run there, it was held that the evidence warranted a finding that in consideration of the plaintiff giving up his claim to the theatre the defendants bound themselves jointly to make the weekly payments during the run of the play.</p> <p>In the action above described the defendants contended that their promise to pay $500 a week was conditional upon the plaintiff’s complete withdrawal of his play and his not producing it at any theatre in that city during the period of payment, and it appeared that the defendants had stopped making the weekly payments upon the production of the plaintiff’s play at another theatre in the city. The evidence on the question, whether the plaintiff agreed that his play should be withdrawn during the period for which he was to be paid, was conflicting, and it was held, that, whether the withdrawal of the play from performance in the city was a condition precedent to the defendants’ obligation to pay the plaintiff $500 a week, depended upon the view that the jury took of all the evidence from which the terms of the contract were to be ascertained.</p> <p>In the same case an exception of the defendant to a portion of the judge’s charge to the jury in which he made use of the phrase “trade talk” was overruled on the ground that, while the expressions complained of might be somewhat misleading if standing alone, yet, when the charge was read as a whole and the expressions were viewed in their proper setting, it could not be said that the instructions were clearly erroneous.</p>

<p>Negligence, Street railway, In crowded street.</p> <p>In an action by a woman for personal injuries sustained from being struck by.a street railway car of the defendant when the plaintiff had been thrust upon the track by a surging crowd who were trying to avoid being run over by a large wagon, there was evidence that teams were lined up on either side of the street along the sidewalk, that there were seventy-five or one hundred persons crowded in the centre of the street along both sides of the track, that the crowd was moving, pushing and surging while waiting for the car to stop, that the plaintiff was pushed forward toward the track upon which the car was coming by the crowd at her back, who sought to escape from the large wagon that was being driven along where they had been standing, that the plaintiff, when pushed forward, put up her hand and screamed to the motorman, then from eighteen to twenty feet away, that the car kept coming at the same speed and hit the plaintiff with the fender or side of the car, throwing her between the wheels of the wagon, that the car was going at the rate of four or five miles an hour and - did not lessen its speed until the accident had happened. There was evidence that the crowded condition of this street, with teams lined up on both sides, and the rush to board the car were the usual condition of things at this hour of the day, and that the motorman saw the situation of the plaintiff in time to have avoided the accident. Held, that it was a question of fact for the jury whether the motorman in the exercise of reasonable care could assume that the plaintiff was far enough away from the track not to be struck by the car.</p>

<p>Bond. Contract, What constitutes. Estoppel. Name.</p> <p>An individual person cannot maintain an action against a surety company on a bond in which the obligee is described only as the “New Boston Biscuit Company, a corporation of Malden, Massachusetts,” where the plaintiff testifies that there was no such corporation as the New Boston Biscuit Company in existence, and the defendant’s agent, who executed the bond for it, testifies that acting for the defendant he believed at the time of the execution and delivery of the bond that the surety company was making a contract with a Massachusetts corporation and not with the plaintiff individually, and that, if he had been informed that the New Boston Biscuit Company did not exist as a corporation but that the plaintiff individually was the proprietor of the business mentioned in the bond, he would not have executed the bond in behalf of the defendant, at least not without further investigation, and where it also appears that the defendant was not informed until the action was brought that the plaintiff claimed to be the obligee named in the bond, there being no evidence of a contract between the plaintiff and the defendant.</p> <p>In the same ease it was said that the plaintiff, after his representations that he was acting in behalf of an existing corporation, which were relied on by the defendant, was estopped to deny the existence of the corporation and to assert that the contract contained in the bond was made with him individually.</p> <p>Whether the failure of a person transacting business in a name not his own to have filed a certificate with the clerk of the city in which he carries on his business as required by St. 1907, c. 539, § 1, is a defence to an action brought by him on a bond purporting to be made to a company in whose name he carries on his business, here was mentioned as a question which it was not necessary to consider in the present case.</p>

<p>Three actions op tort against the same defendant for injuries to person and property sustained on June 28,1915, by reason of a collision of a touring car driven negligently by a servant of the defendant with a motor truck belonging to the plaintiffs in the second case in which the plaintiffs in the first and third cases were travelling. Writs dated August 5, 1915.</p> <p>In the Superior Court the cases were tried together before Hamilton, J. The second action was brought by Mario Rolli and Geniseo Rolli, copartners doing business in Brockton as bakers under the firm name of Rolli Brothers. They were the owners of the truck as partnership property and brought this joint action for damage to their property. Monte Rolli, the plaintiff in the first action, was an employee of Rolli Brothers and was engaged in their business when the accident occurred. Geniseo Rolli, already mentioned, was the plaintiff in the third action. At the time, of the collision he and Monte Rolli were seated in the motor truck, which was being driven by one Grant, the chauffeur of Rolli Brothers, and both of them suffered personal injuries for which their respective actions were brought. At the close of the plaintiffs’ evidence, which is described in the opinion, the judge ruled that Rolli Brothers’ truck was on the highway without legal registration, and on that ground alone ordered the jury to return a verdict for the defendant in each of the three cases. The plaintiffs alleged exceptions. ■ ■ .</p>

<p> Workmen’s Compensation Act. Husband and Wife. </p> <p>Under the workmen’s compensation act, as at common law, a woman cannot be the employee of her husband.</p>

<p>Negligence, Employer’s liability, Railroad. Evidence, Competency, Testimony at former trial. Witness, Contradiction, Cross-examination.</p> <p>At the trial of an action by an administratrix against a railroad corporation for causing the death of the plaintiff’s intestate while employed by the defendant as a switchman in a freight yard, there was evidence tending to show that, as an engine backed toward a switch of which the switchman had charge, a signal was set for the engineer to proceed; that the switchman threw the switch and motioned for the engineer to proceed; that then the engineer was out of view of the switchman and the motion of the switchman was communicated by the fireman to the engineer and the engine proceeded; that the fireman then left his point of lookout; that, when the engine was about twenty feet from the switch and was moving at the rate of from three to four miles an hour, the switchman suddenly started across the track in the path of the tender at no time in the view of the engineer, stumbled, and was run over. Held, that there was no evidence to show that the action of the switchman in running into the path of the tender and engine after he had motioned for the engineer to proceed over the switch ought to have been contemplated by the engineer or the fireman; and that there was no evidence of negligence on the part of the defendant.</p> <p>At the trial of the foregoing action, it was proper for the judge to exclude questions, asked by the plaintiff of an engine hostler in the defendant’s employ, called by the plaintiff as a witness, as to duties of the deceased employee in signalling to the engine approaching his switch when another engine, in charge of the witness, was approaching the same switch from another direction, the printed rules of the defendant, if there were any; being the best evidence and, if the subject was one for oral testimony, it being within the judge’s discretion to determine the qualifications of the witness to testify upon the subject.</p> <p>It was proper for the judge, presiding at the trial above described, to permit the defendant to ask the engine hostler, called to testify for the plaintiff, whether he had been requested to resign his position in its employ, and to admit in evidence his reply in the affirmative, the evidence being competent as affecting the credibility of the witness.</p> <p>Where, in the cross-examination of a witness, certain portions of his testimony at a former trial of the action, which were inconsistent with his testimony at the current trial, are put in evidence for the purpose of contradicting him, it is not necessary to grant a request of the party who called the witness that all of his testimony at that trial, irrespective of whether it contradicted the witness, be introduced in evidence.</p>

<p>Evidence, Admissions, Offers of compromise.</p> <p>Where, at the trial of an action for a breach of a contract in writing for the employment of the plaintiff by the defendant as a designer for a certain period, there was evidence that the plaintiff, while absent from the defendant’s place of business with his consent, was unjustifiably discharged by a letter and that before he received the letter he returned and had a conversation with, the defendant, in which the defendant in effect said to the plaintiff that he, the defendant, could get along without a designer for the rest of the season, and “I will give you $300; and you are a good designer, you could get another position,” it was held that it could not be said to have been an error for the presiding judge to admit in evidence so much of that conversation.</p> <p>But it was held that it was a prejudicial error for the judge at the trial above described to admit in evidence later conversations between the plaintiff and the defendant after the plaintiff had received his letter of dismissal, in which the defendant urged upon the plaintiff terms of settlement, offers of compromise not being admissible as admissions of liability.</p>

<p>Deed, Of corporation. Disseisin. Equitable Restrictions.</p> <p>A deed of land belonging to a corporation, purporting to be the deed of the corporation and reciting in the in testimonium clause that it was signed and sealed by the corporation’s treasurer in its behalf, was signed by the treasurer in his own name, had affixed to it an ordinary wafer seal, and was acknowledged by the treasurer as his deed. The grantee took possession of the premises. About two years later the corporation made a second deed of the premises, which was executed and acknowledged properly and stated that it was “made in correction of” the previous deed. Held, that the title of the grantee under the deeds was not that of a disseisor or adverse holder, but was derived from the deed of the corporation.</p> <p>The conveyance above described was made subject to a restriction set forth in the deeds to the effect that no building except a dwelling house and buildings appurtenant thereto should be erected on the premises. The land was designated on a plan and the corporation and its immediate predecessors in title had owned the entire tract shown on the plan. While it appeared that such former owners had conveyed portions of such tract subject to restrictions, it also appeared that such restrictions varied in nature and degree and that a number of lots, the size and position of which could not be regarded as unimportant and insignificant, had been conveyed without restrictions; and it was held upon a petition in the Land Court by a successor in title to the grantee from the corporation, that no general scheme for the improvement of the entire tract was shown, that adjoining owners had no right to enforce the restrictions in the deed from the corporation, and that the title of the petitioner should be registered free from incumbrances.</p>

<p>. Tort, with a declaration in four counts described in the opinion, for the conscious suffering and death of the plaintiff’s intestate, Jeremiah Moynihan. Writ dated July 11, 1916.</p> <p>In the Superior Court the case was tried before Keating, J. The material evidence is described in the opinion. At the close of the evidence, the plaintiff having waived the third and fourth counts of the declaration, the jury by order of the judge returned a verdict for the defendant, and the judge reported the case for determination by this court, judgment to be entered for the defendant if the action of the trial judge was right, but, if the case should have been submitted to the jury on the first count, judgment was to be entered for the plaintiff in the sum of $8,500, and if the case should have been submitted to the jury on the second count, judgment was to be entered for the plaintiff in the sum of $500.</p> <p>The case was submitted on briefs.</p>

<p>Metropolitan Parks District, Apportionment of expense. Constitutional Law. Charles River Basin. Evidence, Presumptions and burden of proof.</p> <p>Commissioners, appointed in 1915 upon a petition of the metropolitan park commissioners under St. 1899, c. 419, § 1, and St. 1903, c. 465, § 9, as amended by St. 1906, c. 402, § 2, for the apportionment of the expenses of the metropolitan parks district for the next succeeding five years among the thirty-eight cities and towns of the district, cannot be said as a matter of law to have acted unreasonably or inequitably or unconstitutionally in basing the percentages of their apportionment of the expense for the maintenance of the parks on average valuation in combination with average population.</p> <p>Nor could the commissioners be said to have acted unjustly when, having decided that Nantasket beach reservation had become a shore resort frequented much more largely by the general public than by people living within the reservation, they apportioned the cost of construction and maintenance thereof for the next five year period according to the valuation of towns within the district.</p> <p>Such commissioners need not set forth in their report their arithmetical computations in detail.</p> <p>It is to be presumed that, when using valuations of towns as a basis for their apportionments, the commissioners followed the last decennial census and the last valuation as established by statute.</p> <p>It was held that the grounds of the judgment of the commission above described were not set forth so insufficiently in their report as to show that the constitutional rights of any of the towns of the district had been invaded.</p> <p>The apportionment commission appointed in 1910 under the statutes above described having treated the construction of the Charles River basin and dam as completed and having apportioned its cost in a report which was accepted on appeal in In re Metropolitan Park Commissioners, petitioners, 209 Mass. 381, the commissioners appointed in 1915 cannot be said as a matter of law to have acted improperly in apportioning among the several municipalities in the metropolitan parks district according to valuation the cost of further dredging of the canals of the basin in order to maintain their original depth and of relaying a granite block pavement on the roadway of the dam made necessary by the settling of the former pavement, moneys so expended properly being chargeable to the expense of maintenance and forming no part of the cost of the original construction.</p> <p>The marginal conduits, constructed respectively on the Boston and the Cambridge sides of the Charles River basin, having been completed, form part of the metropolitan park system.</p> <p>It was the duty of the commissioners, appointed in 1915 for the apportioning of the expenses of the metropolitan parks district for the next five years, to determine anew what special and peculiar benefits, if any, the cities of Boston and Cambridge had derived, respectively, from the construction of the marginal conduits on the southerly and on the northerly sides of the Charles River basin in order to fix the percentages of further construction cost to be paid by those cities and by the other thirty-six municipalities in the district.-</p> <p>The commissioners of 1915, above described, having regarded "as settled” the apportionment by the commissioners of 1910 of the cost of construction of Charles River basin and dam, found, “All the remainder of the construction and all the maintenance expense we apportion among the several municipalities according to valuation,” and annexed to their report three tables only which stated the percentages of apportionment, the first being as to Nantasket beach reservation, the second as to maintenance of parks, and the third being named “All other maintenance and construction expenses.” Held, that in "all the remainder of construction” the commission intended to include and provide for any work of construction in connection with the care and maintenance of the basin which the Legislature from time to time might deem necessary during the succeeding period, and that, if no further appropriation for construction should be authorized, in their judgment an apportionment in accordance with valuation was just and equitable for care and maintenance only; and that such actidn of the commissioners could not as a matter of law be said to be improper.</p>

<p>Petition, filed on December 1,1915, by the National Dock and Storage Warehouse Company, a corporation organized under the laws of this Commonwealth and having its usual place of business in Boston, for a writ of mandamus addressed to the Boston and Maine Railroad, commanding it to desist from violating an order or orders of the public service commission made under St. 1913, c. 784, § 22, by the establishment of rates unjustly discriminatory "as to the petitioner.</p> <p>The case was heard by Pierce, J., who reserved it upon the pleadings and his findings of fact for determination by the full court.</p> <p>St. 1913, c. 784, § 22, is as follows: “Whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint, that the rates, fares or charges or any of them demanded, exacted, charged or collected by any common carrier now or hereafter subject to its jurisdiction, for any services to be performed within the Commonwealth, or the regulations or practices of such common carrier affecting such rates, are unjust, unreasonable, unjustly discriminatory or unduly preferential or in any wise in violation of any provision of law, or that the rates, fares or charges or any of them chargeable by any such common carrier are insufficient to yield reasonable compensation for the service rendered and are unjust and unreasonable, the commission shall determine the just and reasonable rates, fares and charges to be charged for the service to be performed, and shall fix the same by order to be served upon every common carrier by whom such rates, fares and charges or any of them are thereafter to be observed. It shall be the duty of every such common carrier to observe and obey every requirement of every such order so served upon it, and to do everything necessary or proper in order to secure absolute compliance with and observance of every such order by all its officers, agents and employees. The commission may, after investigation, authorize a common carrier in special cases to charge less for longer than for shorter distances for the transportation of passengers or property, whenever in the opinion of the commission such authorization is consistent with the public interests, and the commission may from time to time modify or revoke such authorization.”</p> <p>St. 1906, c. 463, Part II, § 201, mentioned in the opinion as containing nothing at variance with the conclusion of the court, is as follows: “A railroad corporation shall not in its charges for the transportation of freight or in the conduct of its freight business, make or give any undue or unreasonable preference or advantage to or in favor of any person, firm or corporation, nor subject any person, firm or corporation to any undue or unreasonable prejudice or disadvantage.”</p>

<p>Joint Tortfeasors. Execution. Equity Pleading and Practice, Findings of judge, Appeal.</p> <p>A transaction, otherwise valid, will not be set aside because the parties to it acted from the motive of forcing both of two wrongdoers to contribute toward the satisfaction of an execution obtained against them jointly for a wrong in which both of them participated.</p> <p>Where an execution was obtained against a lumber company and a street railway corporation as joint wrongdoers, the street railway corporation asked an attorney, who sometimes tried cases for it, to arrange to buy the execution before it was satisfied. The attorney bought the execution and had it assigned to an employee of the street railway corporation. Thereupon the lumber company brought a suit in equity to enjoin the holder of the execution from enforcing it against the lumber company on the ground that in equity the execution had been paid by one of two joint wrongdoers and that this was an attempt to enforce contribution between the wrongdoers. A judge before whom the case was tried without a jury found, on evidence warranting such findings, that there was no agreement that the street railway corporation or any one for it guaranteed the purchase of the execution, that the attorney who bought the execution was acting for himself and paid for it with his own money and that he was not acting as the agent or attorney of the street railway corporation, and that the holder of the execution was not acting as a servant or agent of the street railway corporation and did not hold the execution on any trust for that corporation. The judge also found that the prevailing motive of most of the persons connected with the purchase and assignment was to aid in avoiding a disposition of the execution by which the lumber company should escape all liability upon it, and that the execution would be enforced against the street railway corporation for any portion not obtained from the lumber company. He made a decree dismissing the bill. Held, that the finding of the judge would not be disturbed, and that the motive to use legal means to'make joint tortfeasors contribute to the payment of the damage caused by a wrong in which they both had participated did not invalidate the transaction; and accordingly the decree dismissing the bill was affirmed.</p> <p>In the present suit in equity, where the evidence, reported in full, amply supported the conclusions of the trial judge, it was remarked that the familiar rule, that on an appeal in equity where all the evidence is reported this court will review the evidence and decide the case for themselves, does not apply where the findings depend on oral testimony, in which case the findings of the trial judge as to facts will not be reversed unless plainly wrong.</p>

<p>Corporation, Income bonds, Acts ultra vires. Guaranty. Contract, Construction. Evidence, Proof of foreign law.</p> <p>In a suit in equity by a holder of income bonds of a corporation for an accounting and to compel the application of alleged net income to the payment of interest on the income bonds, it appeared that no interest ever had been paid on the bonds, that the promise of the corporation to pay interest, contained in each bond, was, “to apply its net income as hereinafter described, in payment of interest on said sum of one thousand dollars at a rate not exceeding five per cent per annum in any one year upon the terms and conditions and in the manner herein set forth; said interest shall be payable semi-annually on the first days of January and July in each year if on such days net income as hereinafter described shall have been accumulated in cash in the Treasury of the Company sufficiently to pay two and one half per cent on the principal of all this series of First Income Bonds. Interest hereon shall not be cumulative. . . . The words ‘net income’ aforesaid, shall be construed to mean the net cash remaining in the Treasury of the Company after deducting a sum sufficient for the payment of all liabilities and expenses thereof, including all such amounts as the Directors of the Company shall authorize to be applied or paid for the purchase of any real or personal property, choses in action, rights or services that in the opinion of the Directors, may be necessary or convenient for the business of the Company, the intention being that the Company shall in no wise be limited in the improvement or extension of its business by the issue of these bonds.” The corporation was engaged in the business of issuing licenses under certain patents and contracts owned by it for the use of asphalt for block pavements and tiles at a stipulated price or royalty for each block made or laid, and the number of corporations to which such licenses were issued by the principal corporation at no time exceeded seven. This was practically the corporation’s sole business. The corporation covenanted to supply or cause to be supplied to its licensees the asphalt required by them. It obtained this asphalt under a contract with the Trinidad Asphalt Company, which provided that that company might ask for and receive from the corporation “a reasonable guarantee or assurance that the cargo so ordered shall be paid for by the party ordering the same, upon delivery thereof.” A master to whom the case was referred found that, after making reasonable provision for the contingent and conditional liabilities of the corporation outstanding on the semi-annual interest days, there were only two such days during the period in question on which the cash in the treasury would have been enough to pay any interest on the bonds. The plaintiff’s exceptions to the master’s report were based on his contentions that various sums of money that ought to have been applied to the payment of interest on the bonds were appropriated for purposes which were ultra vires of the corporation. In regard to these contentions it was held:</p> <p>1. That, as to guaranties by the corporation of payments by its licensees for cargoes of asphalt ordered by them from the Trinidad company, such guaranties were required by the contract of the corporation with that company, and that, in view of the charter and the peculiar business of the corporation, such guaranties, under the law of Connecticut as found by the master which governed the case, were not ultra vires.</p> <p>2. That, as to loans of money or credit by the corporation to its licensees, such loans were shown by the evidence to have been incidental to the business of the corporation and its proper management and displayed good business judgment.</p> <p>3. That, as to the acquisition of shares of stock in some of the licensee companies, it was shown that such shares had been taken as collateral security and after-wards had been accepted at an agreed price as part payment of a loan, or after a reorganization of a licensee had been purchased in the exercise of good business judgment as a step incidental to the corporation’s business, or had been acquired by means of a first mortgage on the real estate and plant of the licensee in a transaction that was incidental to the proper management of the corporation’s business and which did not appear to have resulted in any loss.</p> <p>4. That the same was true in regard to a contract relating to a portable asphalt block which the directors rescinded in good faith.</p> <p>5. And that, as to all these matters, if under the terms of the income bonds the holder of such a bond had any standing to complain of them, none of the acts complained of was ultra vires of the corporation.</p> <p>In the same case it was held that the master was right in deciding that on the interest days the corporation reasonably could reserve a suitable amount of cash to provide for the contingent or conditional liabilities outstanding at such dates.</p> <p>In the same case it was held that the master was right in deciding, that by the correct construction of the bond no deduction was to be made on account of money appropriated or promised by the corporation for the payment of which it was not legally bound directly, contingently or conditionally, and that no deduction was to be made for operating expenses not already incurred nor to make good losses on account of capital.</p> <p>In a suit in equity reported by a single justice for determination by this court upon exceptions to a master’s report, the master’s report contained the following statement: “The parties agreed that all Statutes of the State of Connecticut and all reported cases decided by the courts of that State might be referred to by me as if introduced in evidence. No such statute has been called to my attention. The only such cases which have come to my attention which seem to bear upon the questions raised in the case at bar are the following: [citing four cases]. These cases are hereby made a part of this report.” It was said, “to avoid misapprehension,” the matter not being in controversy, that on this record this court could not consider any statute or decision of Connecticut to be proved as a fact with the exception of the four cases expressly referred to.</p>

<p>Bill in equity, filed in the Superior Court on April 20, 1915, under St. 1910, c. 531, § 2, to reach and apply shares belonging to the defendant Dimond in the defendant L. Dimond and Sons, Incorporated, a corporation, to the payment of instalments of money due to the plaintiff by the defendant Dimond under a guaranty in writing which is stated in the opinion, where also are stated the amendment to the bill, the answer of the defendant Dimond and the entry by consent of a decree dismissing the bill as against the defendant corporation.</p> <p>The plaintiff filed the following motion:</p> <p>“Now comes the plaintiff in the above entitled cause and says that since the filing of his bill herein an involuntary petition in bankruptcy has been filed against the defendant L. Dimond and Sons, Incorporated, under which petition an offer of composition in bankruptcy was confirmed by the District Court of the United States for the District of Massachusetts on September 21, 1915, and that in consequence thereof the capital stock of said defendant L. Dimond and Sons, Incorporated, has become worthless; wherefore the plaintiff moves that he may discontinue this cause as against said defendant L. Dimond and Sons, Incorporated, without costs.”</p> <p>Upon this motion were indorsed the words “assented to” signed by the counsel for the defendant L. Dimond and Sons, Incorporated, and also by the counsel for the defendant Dimond over the words “without prejudice to the defendant Dimond’s right to dismiss the bill for want of equity.”</p> <p>The motion was allowed, and a decree was made, “all parties agreeing thereto,” that the bill be dismissed as against the defendant L. Dimond and Sons, Incorporated, without costs.</p> <p>Later the defendant Dimond filed a motion that the suit “be dismissed upon the ground that there is no equitable jurisdiction.” The case was heard by Fox, J., who made the following memorandum of decision:</p> <p>“The execution of the instrument of guaranty concurrently with the promissory note was proved, and the consideration for the guaranty was established. The amount due under the guaranty at the time of the filing of the amendment was $2,307.84.</p> <p>“At the opening of the hearing, the counsel for the defendant objected that after the discontinuance as to Dimond and Sons, Incorporated, the court was without equitable jurisdiction, and renewed his motion at the close of the testimony. I ruled that, since it appeared that Dimond and Sons, Incorporated, was a going concern when the bill was brought, and the answer admitted that the defendant held stock in it, the jurisdiction of the court was not defeated by later discontinuance as to that defendant.” The judge ordered that a decree be entered for the plaintiff; and the defendant alleged exceptions.</p> <p>St. 1910, c. 171, §§ 13, 14, are as follows:</p> <p>“Section 13. No attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined. Except where a certificate is lost or destroyed, such corporation shall not be compelled to issue a new certificate for the stock until the old certificate is surrendered to it.</p> <p>“Section 14. A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such certificate or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by ordinary legal process.”</p> <p>St. 1910, c. 531, § 2, adds to the grounds of equity jurisdiction described in R. L. c. 159, § 3, cl. 7, as amended by St. 1902, c. 544, § 23, the following: “Also suits to reach and apply shares or interests in corporations organized under the laws of this Commonwealth or of the United States, and located or having a general office in this Commonwealth, whether the plaintiff is a creditor or not, and whether the suit is founded upon a debt or not.”</p>

<p>Bill in equity, inserted in a common law writ in the Superior Court dated May 5, 1916, to compel the specific performance of two agreements in writing, designated as “A” and “B,” dated January 26, 1916, to purchase from the plaintiffs at the prices therein named certain parcels of land in the part of Boston called Dorchester.</p> <p>" The contract designated as “A” contained the following paragraph:</p> <p>“Said premises are to be conveyed on or before February 21, 1916, by a good and sufficient deed of the party of the first part, conveying a good and clear title to the same free from all incumbrances, and for such deed and conveyance the party of second part is to pay the sum of forty-three hundred and eighty ($4380.00) dollars of which two hundred ($200.00) dollars have been paid this day, forty-one hundred and eighty ($4180.) dollars are to be paid in cash upon the delivery of said deed.”</p> <p>The contract designated as “B” contained the following paragraph:</p> <p>“Said premises are to be conveyed on or before April 26th, 1916, by a good and sufficient deed of the party of the first part, conveying a good and clear title to the same free from all incumbrances. No restrictions, and for such deed and conveyance the party of the second part is to pay the sum óf twenty-eight [hundred] ($2800). dollars of which one hundred ($100). dollars have been paid this day, twenty-seven hundred ($2700). Dollars are to be paid in cash upon the delivery of said deed. Said Two hundred ($200). is to be considered an option on said property in case the parties of the second part do not fulfill the terms of this agreement by purchasing and no part thereof is to be refunded.” Each of the two defendants demurred to the bill, and their demurrers were overruled.</p> <p>Each of the two defendants also filed the following answer:</p> <p>“And now comes the defendant ... in the above entitled cause and not waiving his demurrer nor his appeal from the order overruling the same, but insisting upon both, for answer to the bill of complaint, says:</p> <p>1. He denies the allegations in paragraph 1.</p> <p>2. cc CC cc cc cc “ 2.</p> <p>3. cc cc cc cc cc “ 3.</p> <p>4. cc cc cc cc cc “ 4.</p> <p>5. cc cc cc cc cc “ 5.</p> <p>6. cc cc cc cc cc " 6.</p> <p>7. cc cc cc cc cc ' “ 7.</p> <p>00 cc cc cc cc cc “ 8.</p> <p>9. cc cc cc cc cc “ 9/</p> <p>The plaintiffs filed the following replication:</p> <p>“Now come the plaintiffs in the above entitled cause and join issue on the defendants’ answer.”</p> <p>The case was heard by Jenney, J., who found the facts that are referred to in the opinion. He made a decree dismissing the bill with one bill of costs in favor of both defendants. The plaintiffs appealed.</p>

Contract upon an account annexed for goods alleged to have been sold and delivered by the plaintiffs, Arthur Kreeger and Irving Kreeger, copartners doing business under the firm name of Kreeger Brothers, to the defendants, Jacob Margolies and Adolph Jacobs, copartners doing business under, the firm name of Margolies and Jacobs. Writ in the Municipal Court of the City of Boston dated January 15, 1914.

<p>Petition, filed in the Supreme Judicial Court on February 17, 1917, under St. 1909, c. 490, Part III, § 70, for an abatement of a portion of the franchise tax assessed upon the petitioner in 1916.</p> <p>The answer of the Commonwealth admitted the allegations of fact contained in the petition.</p> <p>The case was reserved by Pierce, J., upon the petition and answer for determination by the full court.</p> <p>The material portions of St. 1909, c. 490, Part III, § 41, as amended by Sts. c. 1910, c. 270, § 1; 1912, c. 491, § 1; 1914, c. 198, § 6, are as follows:</p> <p>“Section 41. The tax commissioner shall ascertain from the returns or otherwise the true market value of the shares of each corporation subject to the requirements of the preceding section, and shall estimate therefrom the fair cash value of all of said shares constituting its capital stock on the preceding first day of April, which, unless by the charter of a corporation a different method of ascertaining such value is provided, shall, for the purposes of this part, be taken as the true value of its corporate franchise. From such value there shall be deducted: . . .</p> <p>“ Third. In case of a domestic business corporation, the value of the works, structures, real estate, machinery, poles, underground conduits, wires and pipes owned by it within the Commonwealth subject to local taxation, and of securities which if owned by a natural person resident in this Commonwealth would not be liable to taxation; also the value of its property situated in another state or country and subject to taxation therein. There shall not be deducted the value of securities which if owned by a natural person resident in this Commonwealth would be liable to taxation, nor shall there be deducted the value of any shares of stock of the corporation itself owned directly or indirectly by it or for its benefit; and the tax commissioner in determining for the purposes of taxation the value of the corporate franchise of any such corporation shall not take into consideration any debts of such corporation unless the returns required from it contain a statement duly signed and sworn to, setting forth that no part of such debts was incurred for the purpose of reducing the amount of taxes to be paid by it.”</p>

<p>Trade Name. Unfair Competition. Corporation, Name. Name.</p> <p>Prom findings of a master to whom was referred a suit in equity by a corporation, Carney Hospital, of Boston to enjoin the defendant from conducting in Boston for profit a lodging house and registry for nurses under the name, “Carney Graduate Nurses’ Club,” or “Nurses’ Club, Carney Grads.,” it appeared that the business conducted by the defendant never had been mistaken for the Carney Hospital, that a method of listing in the telephone directory was not liable to lead to its being so mistaken, that the defendant had made no false representations as to the school in which nurses furnished by her were trained, that the use by her of the name “Carney” in connection with her business interfered in no way with the enjoyment of any rights by the plaintiff, and that the use of the name “Carney” in connection with the defendant’s business "connotes the Carney Hospital in a limited sense only” by importing the idea that at the defendant’s establishment Carney Hospital muses could be secured. Held, that there was no ground for enjoining the business of the defendant as unlawfully competing with the plaintiff, because it was plain that the plaintiff and the defendant were not conducting competitive businesses and that the defendant had not misled the public to the belief that the defendant’s business was conducted under the auspices of the plaintiff.</p> <p>The provisions of R. L. c. 72, § 5, in substance that no person shall assume or continue to use in business in this Commonwealth the name “of any other person, either alone or in connection with his own or with any other name or designation, without the consent in writing of such person or of his legal representatives,” do not give to an incorporated hospital named “Carney Hospital” a right to object to the use without its permission, by a woman conducting a lodging house and nurses’ registry, of the business name “Carney Graduate Nurses’ Club” or “Nurses’ Club, Carney Grads.,” because the word “Carney” is not the corporation’s name within the meaning of the statute.</p>

Replevin of forty tons of coal under the circumstances described in the opinion. Writ in the District Court of East Norfolk dated November 14, 1913. On appeal to the Superior Court, the case was heard by Irwin, J., without a jury. There was no report of the evidence. Material facts found by the judge are stated in the opinion. The judge ■found for the defendant; and the plaintiff alleged exceptions.

<p> Interstate Commerce. Workmen’s Compensation Act. </p> <p>Where the mate of a towboat, operating only in Boston Harbor, is at his work on her deck when she is preparing to make fast to a coal barge engaged in interstate commerce for the purpose of towing the barge to certain flats within the harbor, there to be taken in tow by an ocean-going tug and carried to a port in another State, and is injured by steam and boiling water coming from a donkey-engine suddenly started on the deck of the barge, he is a seaman on a vessel engaged in interstate commerce and by the terms of St. 1913, c. 568, unchanged by St. 1914, c. 708, § 13, is excluded from the operation of the workmen’s compensation act; and consequently in an action against his employer, who also is the owner of the barge and who is not a subscriber under that act, for his injuries thus sustained he cannot take advantage of the provisions of St. 1911, c. 751, Part I, § 1.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 27, 1916, by the sole trustee under the will of Nathaniel Whiting, late of Watertown, who died on November 18, 1871, for instructions, containing the prayers which are quoted in the opinion.</p> <p>The will of Nathaniel Whiting was dated September 23, 1871. The fourth article of the will was as follow^:</p> <p>"Fourth: All the rest and residue of my property and estate, of every description, real, personal and mixed, of which I shall die seized, or to which I shall be entitled at the time of my decease, I give, devise and bequeath to John P. Healy, of Boston, in the County of Suffolk and Commonwealth aforesaid, my son, Arthur N. Whiting, and J. Franklin Fuller, of said Boston, in trust, nevertheless, that they shall prudently manage the same, and take the income thereof, and after paying therefrom all taxes and premiums for insurance thereon, all expenses for repairs upon the real estate, and all other expenses incident to the proper care, management and preservation of all the trust property and estate, and a reasonable compensation for their own services, they shall dispose of the net income remaining, so long as my said wife shall live and remain my widow, or either of my four children hereinafter named shall live, as follows, viz.: they shall pay to my brother, Timothy Whiting, one thousand dollars annually, by quarter-annual instalments, during his life, in such ways and manner as that all stuns paid to him shall be used for his support and comfort, and not be liable for any debt or debts he may owe; and they shall pay to my nephew, Horatio Whiting, six hundred dollars annually, by quarter-annual instalments, during his life, in like ways and manner, and affording him á like protection — my purpose being in each case to provide the means for the support of my relative, and not to give money to his creditors. The residue of said net income shall be divided, quarter-annually, among my said wife and my four children, Adelaide M. Whiting, Arthur N. Whiting, Anna D. Whiting and Dwight Whiting, so long as my said wife shall live and remain my widow and all my said children shall live, equally, share and share alike. When my said wife shall die or be married, my trustees shall divide her said share of said income among my said children, or the survivors of them, and the issue of my deceased children, if any, by right of representation, equally share and share alike. When and as often as any one of my said children shall die, if the child so dying shall leave issue surviving, my trustees shall pay to such issue the share of said income which would be payable to the deceased child if living; if the child so dying shall leave no issue surviving, my trustees shall pay the share of said income which would be payable to the deceased child if living, to my said wife, if living and unmarried, and the survivors of my said four children and the issue of my deceased children, if any, by right of representation, equally share and share alike; and if my said wife shall be dead or married, to the survivors of my said four children and the issue of my deceased children, if any, by right of representation, share and share alike.</p> <p>“Upon the decease or marriage of my said wife and the decease of the last survivor of my said four children, my trustees shall divide and distribute all said trust property and estate among my heirs-at-law, according to the statutes which shall then be in force in said Commonwealth, regulating the distribution of intestate estates, unless my said brother and my said nephew, or either of them, shall then be living. If my said brother and my said nephew, or either of them, shall then be living, my trustees shall, before making said division and distribution among my heirs at law, reserve enough of the trust property or estate to secure to them respectively the full provision hereinbefore made for them.”</p> <p>Timothy Whiting died about 1873. Horatio Whiting also-died! Rebecca Whiting, the widow of Nathaniel Whiting, never remarried and died intestate on April 20, 1906, leaving as her heirs at law and next of kin her two children, Anna Dwight Howard and Dwight Whiting, and one grandchild, Ethel Whiting Otis, the daughter of Arthur N. Whiting.</p> <p>The case came on to be heard by Pierce, J., who reserved it for determination by the full court.</p>

Bill in equity, filed in the Supreme Judicial Court on October 11, 1916, by one of the trustees under the will of James W. Fenno, late of Boston, who died in the year 1868, for instructions. The will of James W. Fenno was dated January 15, 1868, and left all of the testator’s property in trust as follows: I give and bequeath to Edward S. Rand Junior Counsellor at law and Charles U. Cotting Real Estate agent both of said Boston all my real estate.

<p>Libel and Slander. Evidence. Witness, Examination of adverse witness. Damages, In tort: from publication of libel. Practice, Civil, Ordering verdict, Exceptions.</p> <p>In an action against a former employer of the plaintiff for an alleged libel published in certain newspapers and a trade journal charging the plaintiff with dishonest and disloyal use of trade secrets of his former employer, upon exceptions of the defendant relating to the admission and exclusion of evidence at the trial, it was held that, there being ample evidence to connect the defendant with the publication charged, the portions of the newspapers and of the trade journal containing the articles in question properly were admitted in evidence, the order of proof resting in the discretion of the presiding judge, that a conversation of the defendant with the publisher of one of the newspapers in question was admissible, at least to show that the defendant procured the publication in that paper, that certain letters of the defendant to one of the newspapers in question were admissible, and that certain evidence offered by the defendant was excluded properly as being immaterial or res inter alios.</p> <p>In the same case, the defendant having been called by the plaintiff as a reluctant witness in the plaintiff’s behalf, it was held that it could not be said that the discretionary power of the presiding judge in regulating the scope of what was virtually a cross-examination of the defendant was exercised improperly.</p> <p>In the same case, there having been ample evidence of publication and of malice, it was held that the libellous character of the articles was to be determined by the jury by considering each article in its entirety.</p> <p>In the same case, the presiding judge submitted to the jury a number of special questions, the answers of the jury to which were held by the court to establish all the essentials of liability, and it further was held that under these circumstances there was no error on the part of the judge in ordering the jury to return a general verdict for the plaintiff.</p> <p>In the same case, upon a new trial solely upon the issue of damages, it was held that the defendant had no ground for exception to an instruction given to the jury at the request of the plaintiff, to the effect that the truth or falsity of the charge of disloyalty contained in the libellous articles should not be considered except as, upon the evidence properly in the case, such truth or falsity might affect the amount of damages to be awarded by reason of that charge.</p> <p>Upon the trial of the same issue of damages the defendant contended that, as the jury at the former trial had found that the plaintiff had broken his contract of employment by the defendant, he could not recover damages for loss of his earning capacity; but it was held that this contention was not correct, because the impairment of the plaintiff’s earning capacity caused by the publication of the libel might be found to have extended beyond the period of the contract; and moreover, that the defendant’s contention wrongly assumed that the plaintiff might have gone back to the defendant’s employ after the publication of the libel, which was not found by the jury.</p> <p>Upon the contention mentioned above the judge instructed the jury as follows: "If you find that contract was still open to him after the libel was published and he reasonably ought to have gone back to that employment after that time, then I am going to permit you to consider his failure to do that, ... if • that was still open to him then he cannot have damages assessed” and "unless you find he could have gone back you get to the question whether these publications did prevent him from obtaining employment during part or the whole of the time since.” Held, that this instruction was sufficiently favorable to the defendant.</p> <p>Upon the trial of the same issue of damages, the plaintiff excepted to the admission of evidence in regard to efforts of the plaintiff to get customers of the defendant for his new employer, who was the person named in the libel to whom the plaintiff was charged with having divulged wrongfully the defendant’s trade secrets, and it was held, that, although this evidence appeared to be incompetent as being immaterial to the issue on trial, the error of admitting it did not affect injuriously the substantial rights of the plaintiff and that under St. 1913, c. 716, § 1, the exception should be overruled.</p> <p>Upon another exception of the plaintiff taken at the trial of the same issue of damages, it was held that the judge rightly refused to rule as matter of law that the plaintiff could not have returned to his former work, the question whether he could have returned to the defendant’s employ or not being one of fact for the jury.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on September 22,1915, by the trustee under a certain antenuptial agreement and deed of trust dated May 9,1848, made by Alice Brazer Brooks, then of Princeton, afterwards Alice Brazer Norris, who died on January 9,1914, domiciled at Milwaukee in the State of Wisconsin, for instructions.</p> <p>The case came on to be heard before Pierce, J., upon the bill and answers and a stipulation as to facts. The material facts are stated in the opinion.</p> <p>The will of Alice Brazer Norris was dated April 12, 1887. By each of the first and second articles she made a pecuniary legacy. The third article was as follows:</p> <p>“Third: — All the rest, residue and remainder of my property, real, personal and mixed, and wherever situate, I hereby give, devise and bequeath unto my four children, Charles W., Alice B., Julia and George Henry to be divided between them equally share and share alike; provided however, if any one or more of my children above named shall not survive me and shall have no issue living at the time of my death, the share which such child or children or their issue, would have taken if living shall lapse, and shall be divided between the survivor or survivors of my children above named and the issue of any deceased child or children, who shall survive me, such issue taking by the right of representation.</p> <p>“And whereas, under and by virtue of a certain agreement or settlement made before my marriage with my late husband Greenleaf D. Norris, witnessed by a certain indenture of three parts made the ninth day of May 1848, between myself by my maiden name, Alice Brazer Brooks, my said husband, and John Brooks late of Princeton in the County of Worcester in the State of Massachusetts, which is recorded in the Records of Deeds in the County of Suffolk in the State of Massachusetts, in Liber 591, Folio 281, I am entitled to certain property and the right and power to dispose of the same by will, now it is my intent and will that all my right, title and interest in and to said property in said agreement mentioned shall be deemed and taken as a part of my estate disposed of by this my will and testament.”</p> <p>There was a codicil dated February 18, 1909, which increased a pecuniary legacy to a grandson that was contained in the second article of the will, ratifying and confirming the will in all other respects.</p> <p>The single justice reserved the case for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Total incapacity, Practice.</p> <p>An injury to the right hand of a water boy sixteen years of age, having little knowledge of the English language, resulting in the amputation of the middle finger and stiffness and other impairment of the index and ring fingers, leaving the thumb normal and the little finger in good condition except from disuse, where it appears that the boy afterwards worked at substantially his old work during two months and apparently did not suffer therefrom and where there is no evidence that he was unable to work aside from the necessary disability due to such an injury and no evidence that he made any effort to get work after leaving the employ of the employer in whose work he received his injury, does not warrant a finding that the boy is entitled to compensation for “total incapacity” to work within the meaning of the workmen’s compensation act.</p> <p>Where on an appeal in a claim under the workmen’s compensation act a decree that had been made in accordance with a decision of the Industrial Accident Board was reversed on the ground that an award of compensation for total incapacity to work was not warranted by the evidence, it was ordered that, as the employee had had a full trial, with the aid of counsel, there should not be a rehearing involving the introduction of new evidence, but that the employee should be given an opportunity to move for a further hearing before the board on the testimony already heard and to apply for such compensation as he legally was entitled to, and that the claim be recommitted to the Industrial Accident Board for that purpose.</p>

Bill in equity, filed in the Superior Court on August 9, 1916, by Raymond W. Gammon and Theresa Harkins, proprietors of a moving picture theatre in Boston known as the Apollo Theatre, and Harry Martin and Leo Wellbrook, employees in that theatre, against the president, vice president, treasurer, secretary and business agent and several members of a voluntary organization, called the “Moving Picture Operators Protective Union of Boston.

<p>Trust, Constructive. Corporation, Officers and agents. Landlord and Tenant. Equity Jurisdiction. Equity Pleading and Practice, Parties. Evidence, Presumptions and burden of proof. Agency.</p> <p>Where one, who was the president, treasurer, manager and a director of a corporation engaged in trade, through a long and intimate knowledge of its affairs knows that, by reason of long occupancy of certain premises as a store by itself and by a partnership which it had succeeded in business, the corporation had built up a valuable good will in connection with the store in that location, that the location had a peculiar value and that the corporation’s occupancy was as a tenant at will, if, upon the passage of a vote of the directors of the corporation purporting to depose him as president, treasurer and manager but leaving him in the office of a director, he procures from the landlord a lease of the premises to his, the director’s, wife for a term of one year, the landlord and the wife both knowing of the value of the location to the corporation and of the vote of the corporation as to the director, and if the wife thereupon gives to the corporation notice to vacate the premises without delay, a suit in equity may be maintained by the corporation against the director, his wife and the landlord in which it may be found that the lease to the wife was for the benefit of her and the director, that he acted as her agent and that she was bound by his knowledge, and she may be declared to hold the lease as a constructive trustee for the corporation.</p> <p>Where a bill in equity by a corporation is signed by a certain person as one of its directors and the defendant does not question the authority of the director either in his pleadings or at the trial on the merits, and the corporation raises no such question, it must be presumed that the suit was brought with the corporation’s authority, and that, if the bill originally was signed without authority, the act of signing afterwards was ratified by the corporation.</p>

<p>Trust, Accountability of trustee. Mortgage, In trust.</p> <p>A mortgage by a corporation of certain of its property, including all the shares of the capital stock of two other corporations, to a trustee as security for the payment of bonds issued by the corporation contained, among others, provisions that the corporation might retain full voting powers upon the stock of the two other corporations, that it should pay a certain amount to the trustee each year to be placed in a sinking fund for redemption of the bonds, such payments to be made either in cash or in bonds taken at their face value, that bonds so delivered should be cancelled forthwith by the trustee, and that the. trustee should incur no liability in consequence of permitting the corporation to retain possession of the property mortgaged. The corporation caused the two other corporations to sell their real estate, received the proceeds of the sale, used it to pinchase some of the bonds and delivered them up to the trustee, who cancelled and destroyed them. There was no dissipation of trust property. At that time there had been no default under the mortgage. Held, that the payments made by the corporation by the receiving and cancellation of bonds were in accordance with its rights under the mortgage, and that there was no breach of duty by the trustee in accepting, cancelling and destroying the bonds.</p> <p>Further provisions of the above mortgage trust were that the proceeds of a sale of any of the mortgaged property should be applied on account of yearly payments into a sinking fund, and that the trustee might and at the request of the corporation should apply any money in the sinking fund to the redemption of bonds to be drawn by lot; that under certain circumstances the corporation might sell or exchange some of the mortgaged property and that the trustee should release such property from the mortgage, the proceeds of such sale or exchange to be given to the trustee for further security and to be applied by direction of the corporation either to reimburse it for expenditures in acquiring the additional property added to the security or for the account of the sinking fund and the redemption of the bonds; that the trustee should not be required to take notice of any default of the corporation unless specifically notified in writing of such default; that the trustee could not be required to institute proceedings by reason of a default of the corporation until properly indemnified against expense; that the trustee should not be answerable for any error or mistake of judgment made by it in good faith, but should only be liable for its own wilful misconduct or gross negligence in the conduct of the trust and that it should incur no liability in consequence of its permitting the corporation to retain possession of the property mortgaged. At a time when the corporation was three years in default under the mortgage, the trustee released certain property from the mortgage for the corporation to sell. The entire proceeds of the sale, $15,000, were paid to the trustee who used it for the purchase of twenty-three of the bonds at sixty per cent of their par value. About four months later the corporation was adjudicated a bankrupt and its assets were insufficient to satisfy the bonds outstanding. In a suit in equity by a bondholder against the trustee to compel an accounting as to this sum, a single justice, upon evidence warranting the finding, stated that he was unable to find that the investment was not a proper one and that in making the purchase the trustee did not exercise the sound judgment and reasonable and prudent discretion required of a trustee, and dismissed the bill. There was some evidence that a single group of the bondholders profited by the transaction. Held, that under the circumstances the acts of the trustee in using the $15,000 to retire twenty-three of the bonds instead of using it to retire fifteen of the bonds to be drawn by lot could not be held to have been a breach of his duty, and that the findings of the single justice could not be said to be clearly wrong.</p>

<p>Insurance, Life. Husband and Wife. Equity Jurisdiction, Suit to compel relinquishment of husband’s property retained by wife after separation.</p> <p>In a suit in equity by a husband against his wife, after separation, to compel her to relinquish possession of three policies of insurance upon the plaintiff’s life, two being for the benefit of the defendant with a reservation in the plaintiff of a right to change the beneficiary subject to the consent of the company, and the third being for the benefit of the plaintiff’s estate, the defendant contended and testified that the plaintiff had delivered the policies to her as a gift. Upon conflicting evidence, the trial judge found and ruled that the plaintiff was entitled to the policies. Held, that, the suit being for the possession of the policies, the rights which the wife would have under R. L. c. 118, § 73, if she should survive her husband and should remain a beneficiary under two of the policies, were not in issue, and that, the evidence being conflicting, the judge had a right to find that the husband did not give the policies to his wife.</p>

Bill in equity, filed in the Superior Court on August 30, 1906, by several of the stockholders of the defendant corporation against the corporation and other stockholders and officers, alleging fraudulent conduct in its. management and seeking the appointment of a receiver and a conservation and distribution of its assets.

<p>Taunton. Water Supply. Statute, Construction. Eminent Domain. Certiorari. Words, “Either.”</p> <p>In St. 1875, c. 217, § 1, which authorized the city of Taunton for the purpose of a water supply “to take and hold the waters of either Taunton River ... or Elders’ and Assowompsett ponds,” the authority given was in the alternative, and, when in, 1876 that city exercised its election by taking the waters of the Taunton River, it lost the right to take the waters of the ponds named and also the right to take “such land around the margin of said ponds, not exceeding five rods in width, as may be necessary for the preservation and purity of said waters.”</p> <p>Neither St. 1893, c. 402, § 1, ratifying the right of the city of Taunton “to take and hold the waters” of the two ponds named above “and the waters flowing into said ponds, together with any water rights connected therewith, according to the terms and conditions” of St. 1875, c. 217, nor § 2 of the same statute, ratifying “the doings and proceedings of the city of Taunton or of its city council, relating to the taking and holding of the waters of said Elder’s Pond and of said Assowompset Pond, or to the taking and holding of lands in and about said ponds or elsewhere,” gives any authority to the city of Taunton to take for the purposes of its water supply land on the shore of Assowompsett Pond.</p> <p>A right to take the land of a private owner by eminent domain is not to be inferred from vague general language in a statute.</p> <p>A petition for a writ of certiorari is the proper remedy to quash proceedings for the unlawful taking of the petitioner’s land by a city for the purposes of its water supply under the alleged authority of a statute.</p>

<p>Agency, Agent’s compensation. Custom. Contract, Performance and breach.</p> <p>A real estate agent employed to manage certain apartment house property and to collect the rents during a period named, when called on to send a report and check, rendered an account, in which, instead of deducting from the amount of the rents collected by him merely the amount of his disbursements and of his commissions on the rents actually collected on leases of the apartments that had been let, he deducted a sum equal to five per cent on the yearly rental of all the property, against which he proposed to apply his charge of five per cent “as it accrued.” There was no provision in the agent’s contract with the owner of the property in regard to his retaining or reserving a sum covering prospective commissions, but he based his right to do so on a custom of his office, which was not known to the owner. The owner demanded the payment to him of the sum of money thus reserved in excess of the commissions on rents already collected, and, on the agent refusing such payment, the owner terminated the agency before the term of employment had expired. Held, that the custom unknown to the owner could not be made a part of the contract and that the owner had a right to terminate the agency.</p>

<p>Trust, Creation. Mortgage, Of real estate.</p> <p>If a man engaged in the insurance business, holds as trustee for another person a mortgage on real estate for $7,700, and, the beneficial owner of the mortgage desiring to dispose of it for cash, such trustee at the request of the mortgagor transmits to the beneficial owner the mortgagor’s offer of $4,000 for the note and mortgage, and the beneficial owner declines this offer but expresses a willingness to sell the note and mortgage for $5,000, whereupon the trustee does not inform the mortgagor of this counter offer, but buys the note and mortgage for himself for $5,000, he has violated no obligation toward the mortgagor, there having been no fiduciary or contractual relation between them, and a suit in equity brought by the mortgagor against such purchaser to compel him to transfer the mortgage and note to the mortgagor on payment of $5,000 must be dismissed.</p>

<p>Contract against the administrator of the estate of William A. Bray, late of Lynn, on a judgment for $1,227 damages and $39.53 costs obtained against the defendant’s intestate on February 6, 1896. Writ dated August 26, 1914.</p> <p>The defendant in his answer alleged that he gave notice of his appointment as administrator on January 13, 1913, that he had paid out the whole of the estate of his intestate ^amounting to $2,598.64] in the payment of debts of which he had notice, that he had no notice of the plaintiff’s demand against the estate until the service of the writ upon him on August 28, 1914, and that on December 7, 1914, he filed in the Probate Court of the county of Essex an account of his administration, which was allowed on the same day.</p> <p>In the Superior Court the case was heard by Chase, J., without a jury. He found the facts that are stated in the opinion. The plaintiff asked the judge to make the following rulings:</p> <p>“ 1. The facts set forth in the answer do not constitute a defence to this action.</p> <p>“2. It is no defence; that the whole of the estate and effects of the deceased were consumed in paying off the debts due from the estate.</p> <p>“ 3. On the admitted facts the plaintiff is entitled to a finding.”</p> <p>The judge refused to make these rulings, and found for,the defendant. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p> Interstate Commerce. Waiver. </p> <p>A provision in an interstate bill of lading issued by a railroad corporation in a form filed by the corporation with its tariff schedules with the interstate commerce commission, that “ Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed,” and that “Unless claims are so made the carrier shall not be liable," cannot be waived by the railroad corporation that filed the form of the bill of lading with its schedules. Following Georgia, Florida & Alabama Railway v. Blish Milling Co. 241 U. S. 190.</p> <p>Examples cited by Rijgg, C. J., of the application of the principle that there can be no waiver of an express prohibition embodied in the law for the general welfare.</p>

<p>Contract, Construction, In writing. Evidence, Extrinsic affecting writings. Words, “Contest.”</p> <p>A retail druggist made with the proprietor of an advertising plan a contract in writing, stating that he ordered, subject to the approval of such proprietor, certain merchandise “in payment for which I herewith hand you my six notes, payable to your order, aggregating $600,” which were to be cancelled and returned if the order was not approved. A second paragraph of the contract stated an agreement that, if in the next twelve months the druggist’s gross sales did not show a specified increase, the proprietor of the advertising plan would pay the druggist the deficiency in cash and would give his bond for $600 “to cover this agreement.” A third paragraph contained specific agreements by the druggist as to receiving the shipments specified and the conducting of a “contest plan.” There was a provision that the order could not be countermanded. The order was approved, the goods were shipped and the bond was executed and delivered by the proprietor of the advertising plan. Held, that the contract provided in plain and unambiguous language that the druggist’s promise to pay the notes was an independent' agreement in no way dependent upon the success of the advertising plan.</p> <p>In an action by the payee against the druggist upon the notes above described, paroi evidence, tending to show that the carrying out of the “contest plan” was a condition precedent to liability upon the notes, was not admissible because it tended to contradict unambiguous provisions of a contract in writing.</p> <p>Where, in such action, therefore, the druggist has admitted the execution and delivery of the notes and that nothing has been paid thereon, a verdict should be ordered for the plaintiff; and the druggist, if he claims an amount to be due to him under the provisions of the bond of the proprietor of the advertising plan, should seek his remedy by an action upon the bond.</p> <p>Upon the question, whether, in such an action by the druggist against the proprietor of the advertising plan upon the bond above described, the druggist would be permitted to show that his signature to the contract was conditioned upon an agreement by the salesman procuring it that he, the salesman, would come to the drug store and give his personal services to the druggist in starting and running the contest, and that the salesman refused to do so, the court expressed no opinion.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 11, 1914, against Edward A. Bower, Frank M. Garland, Benjamin T. Way, Walter Coulson, Edgar Gilbert and the Lyster Chemical Company, a corporation, wherein the plaintiff, having paid a note of Garland indorsed by Way, by the plaintiff and by Gilbert, sought to be subrogated to the rights of Garland in an agreement, described in the opinion, between him and the Lyster Chemical Company alleged to have been made as security for the repayment to Garland of $10,000, which the plaintiff alleged Garland procured by means of the plaintiff’s indorsement upon the note, and the agreement, also described in the opinion, between Garland and Bower, guaranteed by Way, Coulson and Gilbert, relating to the carrying out of the first agreement.</p> <p>The suit was referred to a master. Material facts found by him are set forth in the opinion. The plaintiff .filed exceptions to the report, based upon the following objections, which he stated were based upon the ground that the findings or rulings therein described were either rulings of law which the master had no authority to make and which were erroneous, or conclusions of fact manifestly inconsistent with the other findings of the master:</p> <p>“4. Because the master found or ruled that Garland never borrowed any money upon the bill of sale and the Bower contract.</p> <p>“5. Because the master found or ruled that 'so far as Fisk was concerned the transaction was not a loan by him of $10,000 to the Lyster Company, either through the medium of Garland or otherwise.’</p> <p>“6. Because the master found that there was no agreement expressed or implied that any or all of the defendants should pay the $4413.80 received by Garland from the proceeds of the $10,000 note and no agreement expressed or implied that they would use the products of the Lyster Chemical Company for that purpose.</p> <p>“7. Because the master found and ruled that ‘Garland has no rights under the bill of sale except in the event that he raised money on the bill of sale,’ and that ‘he never did raise any money on the bill of sale.’ ”</p> <p>The suit was reserved by Pierce, J., upon the pleadings, the master’s report and the plaintiff’s exceptions to the master’s report for determination by the full court.</p>

Bill in equity, filed in the Superior Court on September 16, 1908, and afterwards amended, against Helen S. Hunt, the Hunt-Spiller Manufacturing Company, a Massachusetts corporation, and the Hunt-Spiller Manufacturing Corporation, a Maine corporation, wherein the plaintiff, who alleged that he brought the suit on behalf of himself and of all other stockholders of the Maine corporation who wished to join, sought to compel the defendant Hunt to surrender her stock in the…

<p>Bill in equity, filed in the Superior Court on September 18, 1916, seeking to enjoin the defendant from constructing, upon certain premises owned by him, a garage in violation of equitable restrictions to which the land of the defendant was alleged to be subject.</p> <p>In the Superior Court the suit was heard by Jenney, J., a commissioner having been appointed under Equity Rule 35 to take the testimony. The judge filed a memorandum of his findings, which are described in the opinion, and by his order a final decree was entered granting the prayers of the bill. The defendant appealed.</p>

Hill, late of Brookline, for the abatement of a legacy and succession tax imposed by the tax commissioner on the transfer of certain securities by the petitioners to the widow of the testator alleged to have been made under the provisions of an antenuptial agreement dated April 6, 1906. The case was heard by Carroll, J. The facts are stated in the opinion.

<p> Interstate Commerce. Jurisdiction. </p> <p>The courts of this Commonwealth have no jurisdiction of an action involving the construction of a tariff filed by a railroad corporation with the interstate commerce commission until such construction has been passed upon and determined by the commission. Following Loomis v. Lehigh Valley Railroad, 240 U. S. 43.</p> <p>Objection to the jurisdiction of the court over the subject matter of an action may be taken at any stage of the proceedings. In the present case an objection to the jurisdiction of the court was taken for the first time at the argument before the full court.</p>

Contract for $1,500 against the defendants as “Trustees, of the Securities Real Estate Trust,” upon an account annexed, the items of which are described in the opinion. Writ dated March 30, 1915. In the Superior Court the action was tried before Hall, J. The instrument, referred to in the opinion as “Exhibit 2,” was an agreement to sell and convey twelve days after its date the premises described therein. Other material evidence is described in the opinion.

<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 James Walsh, who at the time of his injury was employed as a boiler maker by the Wholley Boiler Works, a corporation.</p> <p>In the Superior Court the case was heard by Morton, J. The facts found by the arbitration committee are stated in the opinion. The Industrial Accident Board upon an application for a review adopted the findings and decision of the arbitration committee and found that there was due to the employee as compensation for partial incapacity a weekly payment of $3.75, being one half of the difference between the average weekly wages he was able to earn after the injury and the average weekly wages of $15 which he was able to earn before the injury; that the compensation should continue from June 14, 1915, when it was stopped by the insurer, to September 22, 1915, the date of the hearing, namely, fourteen and two sevenths weeks, amounting to $53.57, and that the compensation should continue at the rate of $3.75 a week during the remainder of the statutory period of three hundred weeks, for which he had not been paid previously.</p> <p>The judge made a decree in accordance with thé decision of the Industrial Accident Board; and the insurer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on March 12, 1915, to set aside a deed of certain land in Everett alleged to have been obtained from the plaintiff by false and fraudulent representations of the defendant Murray, as stated more fully in the opinion.</p> <p>The case was heard by Hamilton, J., who on June 11, 1915, made the following memorandum of decision:</p> <p>“Upon all the evidence I am satisfied that the defendant induced the plaintiff to execute the deed in question by falsely and fraudulently representing to her that it was an instrument to be used in certain proceedings in the Probate Court, which had reference to the settlement of the estate of her deceased husband, which representations the plaintiff believed to be true; that the plaintiff did not, at the time that she signed said instrument, intend to convey to the defendant the real estate referred to in said deed. The defendant’s requests for findings of fact and for rulings are severally refused. The plaintiff is entitled to the relief prayed for in paragraph two of the prayer of said bill of complaint.”</p> <p>The second paragraph of the prayer of the bill asked that the defendant be ordered to reconvey the real estate to the plaintiff and for further relief.</p> <p>On March 27,1916, there was filed and allowed the amendment which is described in the opinion, and thereafter the city of Everett became a party defendant and filed an answer, on which the plaintiff joined issue by filing a replication on April 4,1916.</p> <p>On June 8, 1916, by order of the same judge, the following final decree was entered:</p> <p>“This case came on to be further heard at this sitting and was argued by counsel and thereupon, upon consideration thereof, it appearing after trial that the said defendant, John B. Murray, by false and fraudulent representations made by him to the said plaintiff, which representations the said plaintiff believed to be true, induced her to execute to him the deed, a copy of which is hereto, and to the said plaintiff’s original bill, annexed, bearing date August 12, 1914, and recorded in Middlesex County South District Registry of Deeds, in book 3907, page 534, and that said plaintiff did not, at the time of executing the said instrument, intend to convey to the said defendant, John B. Murray, the real estate referred to in said deed, it is ordered, adjudged, and decreed, that the said deed was and is absolutely null and void and of no effect, and the same is hereby cancelled; that the said defendant, John B. Murray, took no estate in the said premises described in said deed and no title thereunder; that the said plaintiff is, was, and remained the owner of the right, title, and the interest in said premises, and so remained at the time of the said taking of the same by the said defendant, the city of Everett, free from all claims of the said defendant, John B. Murray, and any and all persons, claiming from, by, or -under him; that the said defendant, John B. Murray, and all persons claiming to act for, by, or under him, are hereby restrained and perpetually enjoined from interfering in any manner with the plaintiff or her assigns in the exercise of her or their right, title, or interest in and to said premises or in her or their free use and enjoyment or disposition of the same; that the said defendant, the city of Everett, shall, upon the giving of proper releases, pay over to the plaintiff or her assigns and to none other, the sum or sums estimated and determined as the damages assessed to have been sustained for the said taking of the said premises by the said defendant, the city of Everett; and that the plaintiff recover her costs to be taxed as in an action at law, and have execution therefor.”</p> <p>The decree printed above was entered on June 8, 1916. On June 10,1916, John B. Murray, who on June 11, 1915, when the order for the decree was made was the sole defendant, appealed.</p>

<p> Poor Debtor. Judgment. </p> <p>Under R. L. c. 168, § 44, the facts that a judgment debtor, after having been arrested in poor debtor proceedings upon an execution to which was attached a certificate authorizing the arrest issued after he had been defaulted upon a citation under § 18 of that statute, entered into a recognizance under § 30 and was discharged from arrest and then committed a breach of the recognizance, and that the judgment creditor thereupon brought an action upon the recognizance and recovered judgment against the surety, which is unsatisfied, do not deprive the judgment creditor of his right to maintain an action against the debtor upon the original judgment.</p>

<p>Twelve actions of contract (two actions being brought under each title above given) upon six policies of fire insurance purporting to cover “telegraph poles cut and peeled and all other timber products not more hazardous” located on the “Carrier Tract,” so called, of five hundred and twenty-six acres, which is about six and one half miles from the Holly Ridge station of the Atlantic Coast Line railroad in the State of North Carolina. In six of the actions the plaintiff sought to recover for loss and damage caused by a fire which commenced on October 30,1912; and in the other six for loss and damage caused by a fire which occurred on or about May 5, 1913. In the first six actions the writs were dated July 16, 1913; and in the other six March 20, 1914.</p> <p>The cases were referred to an auditor and were heard together by him. His report was favorable to the defendants. The cases afterwards were, tried together in the Superior Court before Chase, J. The material evidence and exceptions of the defendants to refusals of the judge to grant certain rulings are described in the opinion.</p> <p>That part of the charge of the judge to the jury which related to the evidentiary effect of the auditor’s report, referred to in the opinion, was as follows:</p> <p>“Whenever the trial comes on, if it does come on, either side may submit that report [of the auditor] as evidence of the facts stated in it as the finding of the auditor. If neither side wishes it, the court may either take it himself if he is deciding the case without a jury or have it read to the jury if the case is tried with a jury. As I have said, the statement of fact made as the finding of the auditor becomes evidence of those facts when that report is read. If the auditor merely finds in a given case for the plaintiff in a given sum and when the trial comes on that report is put in and nothing else is said or done, no evidence or testimony is in the case to rebut or control the report, then it is considered sufficient upon which to base a finding in accordance with his finding, and such must be the course. If, on the other hand, testimony is introduced either from the lips of witnesses or through exhibits which tends to control, rebut or overthrow his finding on questions of fact, the case is taken by the jury or by the court upon all the evidence including the auditor’s report and their decision is reached.</p> <p>“The auditor’s report then becomes a part of the material evidence in the case just as the testimony of any witness, and it is for the jury to say what weight, what effect, they see fit to give to the auditor’s report. They may place implicit confidence in it and follow it in case they think they ought to. On the other hand, they can reject it and say, ‘we will not be governed by the auditor’s report at all, we don’t think it is worthy of credit.’ Much may depend in the mind of the jury upon the manner in which the auditor has set about his task as revealed to them through the testimony, the degree of credit which they see fit to give it, if they impose any credit on the report, may be affected largely and increased or diminished by the report itself, by what it says, by its reasoning, by its logic — if there is any in it, by the care and consideration which it tends to show the auditor has given the subject in hand as well as the manner in which he handles the subject. On the one hand, as I said a moment ago, the jury may say this auditor who served was impartial, unprejudiced, he was a competent and experienced man, he has given great care to this subject, he has gone into it deeply, he has filed a full and fair and accurate report as it seems to us; his conclusions appear to be sound and we will follow them. On the other hand, the jury may say that the auditor appears to have been a man who did not understand the case at all; ‘from his manner of handling the case he appears not to have been competent to decide it; his findings are confused, he has stated the claims of the parties incoherently to our mind, and to our mind he never understood the real issue in the case. His findings are not reasonable and logical, and we think his report isn’t entitled to any serious weight.’</p> <p>“Those are the two extremes, and between those there are degrees of value and credit which a jury may see fit to place on an auditor’s report. Perhaps much relates to the subject in hand. You know perfectly well that one of the principal reasons for referring a case to an auditor is because of the difficulty which the jury have in lack of facilities provided for handling and examining accounts. The testimony after it is in cannot be submitted to you as it is taken by the stenographer and written out. You have to rely upon your recollection and as it may be recalled by arguments of counsel and by the charge of the court. You have no facilities given you for taking notes as the case goes along, and it might not be proper you should take them in case you had facilities. Your recollection must govern and tell you what the evidence is. . . .</p> <p>“In this case the auditor has made a general finding for the defendant. The auditor finds, in so far as he has authority, for the defendant in each one of these cases. He makes a specific finding of fact with reference to each of the claims of the plaintiff and the defendant. He has made certain findings with reference to the claims of the plaintiff that he was deceived. He has made certain findings about Clarke and about his impartiality. He has made other findings about the loss. You are entitled to take those findings, consider them, as in fact you ought to consider every part of the testimony. You cannot disregard any portion of the testimony. It is your duty to take it all; it is your duty to take the auditor’s report and give it such credit as you think you ought to, and after you have considered all the testimony make up your mind in the case and decide in accordance with your belief and conviction, bearing in mind that the burden is upon the plaintiff not only to sustain his claim in respect to what I have first noted with reference to the first branch of the case but with reference to the last. The plaintiff must satisfy you that his claim with respect to the total loss is correct, and that you must be satisfied by the fair weight of the evidence that the poles which he claimed to have been burned out of sight were in fact burned out of sight, so that you can say beyond conjecture, beyond guessing, that such was the fact.”</p> <p>The judge submitted certain special questions to the jury, which, with the jury’s answers thereto, were as follows:</p> <p>“1. Was the appointment of Arthur A. Clarke as arbitrator procured by the defendant by means of fraud and false pretences?” The jury answered “Yes.”</p> <p>“2. Was Arthur A. Clarke, the arbitrator, disinterested and impartial?” The jury answered “No.”</p> <p>“3. Was the question of whether any poles or logs were completely burned, and if so, how many, submitted by all parties interested in the loss to the arbitrator and decided by him? ” The jury answered “Yes.”</p> <p>“4. What is the whole amount of the plaintiff’s total loss and damage from the first fire? ” The jury answered “$34,650.”</p> <p>“5. What is the whole amount of the plaintiff’s total loss and damage from the second fire? ” The jury answered “$3,500.” The defendants then conceded that the jury would answer the remaining questions which had been prepared for submission to them favorably to the plaintiff, saving their exceptions to the submission of these questions to the jury; and therefore, by direction of the judge, these questions were answered as follows:</p> <p>“Q. Was immediate notice in writing of the loss given by the plaintiff?” The jury answered “Yes.”</p> <p>“Q. Was the notice of Eaton given within a reasonable time after Charles F. Baker had knowledge of the loss? ” The jury answered “Yes.”</p> <p>“ Q. Was any insufficiency or invalidity of the notice waived by the defendant?” The jury answered “As to the plaintiff, Yes; as to Charles F. Baker, Yes.”</p> <p>“Q. Did the plaintiff make a complete itemized inventory of stock within the twelve calendar months prior to the dates of the policies?” The jury answered “Yes.”</p> <p>“ Q. Did the plaintiff keep such a set of books as is described in the policies? ” The jury answered “Yes.”</p> <p>“ Q. Did the defendants waive any defects in or insufficiency of such inventory and books of the plaintiff if in any respects they were not in compliance with the terms of the policy? ” The jury answered “Yes.”</p> <p>“Q. Was the plaintiff guilty of any fraud or false swearing in any material statements contained in the proof of loss? ” The jury answered “No.”</p> <p>By agreement of the parties, verdicts were returned by order of the judge for the plaintiff in each action as to the first fire, excepting that against the North River Insurance Company, in the sum of $5,542.32, and in the action against the North River Insurance Company in the sum of $2,771.16; and, in the corresponding actions as to the second fire, for $547.61 and $273.80 respectively; and the judge reported the cases for determination by this court.</p>

<p>Equity Jurisdiction, To relieve from fraud. Equity Pleading and Practice, Appeal.</p> <p>In a suit in equity, after a decision by this court, upon a reservation of the suit upon the pleadings and an agreed statement of facts, that the defendant should carry out a certain agreement by the delivery to the plaintiff of certain shares of stock in a corporation formed by the consolidation of three corporations, in one of which the plaintiff was a stockholder, but that the plaintiff should not recover damages due to the defendant’s delay, the agreed statement of facts was discharged and the bill was amended to allege that the entire consolidation plan was conceived and carried out by certain bankers for their own benefit and for the benefit of the defendant, and that the plaintiff sought damages by reason of such fraud. The suit then was referred to a master, who, without a report of the evidence and by findings not inconsistent with themselves or with each other, found that no fraud had been practised as alleged, and a decree dismissing the amended bill was entered from which the plaintiff appealed. Held, that the decree must be affirmed.</p>

Contract upon a bond to dissolve an attachment. Writ in the Municipal Court of the City of Boston dated January 21, 1916. On removal to the Superior Court the action was tried before Hall, J. The material evidence is described in the opinion.

<p>Tax, Recovery of amount paid for invalid tax title. Notice.</p> <p>The provision of St. 1909, c. 490, Part II, § 45, that before a purchaser at a tax sale, who has no claim upon the property by reason of an error, omission or informality in the assessment or the sale, can recover from the municipality the amount which he paid with interest,, he shall make an offer in writing to the collector to surrender and discharge his deed or to assign and transfer to the municipality all his right, title and interest in the premises, as the collector i shall elect, and that such offer shall “ contain a specific statement of the reason why the holder has no claim on the land sold, with the evidence upon which he relies,” requires that before such right arises in the purchaser the collector shall be furnished with a statement sufficiently specific to enable him to determine whether there was an error, omission or informality in the assessment or sale, and a definite statement of what the error, omission or informality consisted, together with the evidence to show the essential facts.</p> <p>A statement accompanying such an offer, which applies to several different pin-chases and alleges one hundred and forty-three reasons why the purchaser was entitled to be reimbursed, many of which are vague and general and one of which alleges that the assessment, advertisements and tax deed erroneously indicated that the premises contained buildings, another that the buildings were only partly on the premises, and still another that the assessment, advertisements and tax deed erroneously omitted' to indicate that the premises contained buildings, are so inconsistent and lacking in definiteness as to fail to satisfy the requirements of the statute.</p>

<p>Unlawful Interference. Strike. Labor Union. Equity Pleading and. Practice, Master’s report, Appeal, Bill, Decree. Agency. Custom. Damages, In equity. Contract, What constitutes, Implied.</p> <p>A corporation, engaged in the manufacture and installation of wrought iron work and having a contract to supply such iron work for a building, may maintain a suit in equity to enjoin the officers and members of a labor union from causing a strike of the union men employed by it in the performance of the contract for the purpose of compelling the corporation to sign an agreement which “would have required it to unionize its outside work,” that is, the work done by it outside its own shop.</p> <p>Where in a suit in equity the defendants did not appeal from an interlocutory decree, which sustained certain of their exceptions to a master’s report and otherwise confirmed the report, none of their overruled exceptions to the mas- . ter’s report are open to them upon an appeal by them from the final decree.</p> <p>The scope of a bill in equity cannot be enlarged by the prayers for relief.</p> <p>In a suit in equity to restrain the officers and members of a labor union from unlawful interference with the plaintiff’s performance of a contract, where it appeared that the plaintiff was entitled to an injunction, and where on the question of damages the plaintiff contended that there was an implied agreement whereby the union understood and constructively agreed that it would furnish union labor for the plaintiff on outside work, it was held that a finding of the trial judge was warranted that no such implied agreement existed, and it was said that the officers of the union could not create either by word or conduct a binding bargain in behalf of the members of their union to furnish 'labor to be performed individually, unless they had been authorized expressly or impliedly by the members to make such an agreement in their behalf.</p> <p>In the same connection it was said that a “custom and practice” of furnishing men whenever the plaintiff communicated its needs to the responsible officers of the union directly or through one of the plaintiff’s foremen who was a member of the union, even if known to the members of the union and never formally disapproved, could not be found to be a contract for a breach of which damages could be recovered or which could be enforced in equity.</p> <p>In the same case it was said that a finding of the master was right which denied to the plaintiff damages for its loss of profits on eleven contracts that the plaintiff would have taken if its amicable relations with the union had continued, as the members of the union lawfully could refuse of their own volition to work for the plaintiff.</p> <p>In the same case it was held, that a “shop loss” occasioned by the loss of the eleven contracts not taken by the plaintiff could not be recovered.</p> <p>In the same case it appeared that a substantial amount of “shop loss,” which was found by the master, included besides the shop loss on the eleven lost contracts the actual shop loss occasioned by the defendants’ unlawful interference with the plaintiff’s existing contract but that it could not be ascertained from the master’s report how much of such loss was occasioned by the stopping of work on the existing contract, and it was held, that, if the plaintiff had wished to have damages assessed for this part of the loss, it should have moved for a recommittal of the report to the master.</p> <p>In the case above described it was contended that the decree should contain a clause forbidding the imposition of fines and penalties as a mode of enforcing the purpose of the defendants in the contest of the union with the plaintiff, but, it appearing that no fines had been imposed and no threats of fines had been made, and the bill containing no allegations of fines or of threats of fines, it was held that there was no reason for such an insertion and no occasion for considering the constitutionality of St. 1911, c. 431.</p>

<p> Guardian, Ad litem. Capital and Income. </p> <p>In a probate account charges for the services of a guardian ad litem, appointed to represent persons unborn or unascertained having possible future interests in a trust fund, are to be charged to capital and not to income.</p>

Bill in equity, filed in the Supreme Judicial Court by the trustees under the will of John D. Bryant, late of Boston, who died on July 27, 1911. The ease came on to be heard before Pierce, J., who reserved it upon the bill and answers for determination by the full court.

<p>Negligence, Of one controlling real estate, In maintaining elevator. Elevator.</p> <p>In an action for personal injuries sustained by reason of the falling of an elevator in a business building of the defendant, where it appears that the operation of the elevator was under the defendant’s exclusive management, that the plaintiff, having transacted business with a tenant of the defendant on the eleventh floor of the building, took the elevator to descend, that the elevator stopped at the tenth floor and, when started again, immediately dropped to the third floor and there stopped with a loud crash and tilted to one side, injuring the plaintiff, and where there is evidence that the accident happened because the safety device of the elevator caught only on one side and also because a gate valve in a discharge pipe, which could have been regulated so as to prevent the accident, was adjusted improperly, the question of the defendant’s negligence is one of fact for the jury.</p>

<p>Tort for personal injuries received when the plaintiff on April 27, 1914, was struck by an electric street car of the defendant bound outward from Boston on East Fourth Street in that part of Boston called South Boston. Writ dated July 15, 1914.</p> <p>In the Superior Court the action was tried before Fessenden, J. It appeared that East Fourth Street runs easterly toward City Point and westerly toward Boston proper and at the point of the accident is a straight street in both directions for many hundred feet. In the centre of it are double tracks of the defendant. P Street crosses East Fourth Street at right angles and upon it also are double tracks, which are connected with the tracks on East Fourth Street. The plaintiff’s house was on the southerly side of East Fourth Street and was the fourth house westerly from the corner of East Fourth Street and P Street. In front of a house on the westerly side of P Street facing East Fourth Street at the corner was a white post of the defendant at which all outbound cars stopped. This was known as a “dead stop” and about opposite this white post were switches by which a car could go either to the north or to the south on P street. There was no evidence that the car which struck the plaintiff had passed the white post before striking him.</p> <p>Other material evidence is described in the opinion. At the close of the evidence the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. The ruling was refused and the case was left to the jury, who found for the plaintiff in the sum of $700. The defendant alleged exceptions.</p>

<p>Negligence, Due care of plaintiff’s decedent, Railroad, Causing death. Evidence, Admissions, Relevancy. Practice, Civil, Conduct of trial: judge’s charge; Exceptions.</p> <p>At the trial of an action by an administrator of the estate of a woman against a railroad corporation for causing the death of the plaintiff’s intestate previous to the enactment of St. 1914, c. 553, there was evidence that the intestate, in order to go to a station of the defendant to procure a time table, had come from her home on a street in a city that ended in a fence at the edge of the railroad location on the opposite side of the tracks from a station building, had passed through an opening in the fence provided with posts about two feet apart and made suitable for entrance and exit from that street to the railroad premises, had crossed double tracks and had entered the station; that, returning from the station at a time over half an hour before any train was due to stop at the station, she looked both ways and saw no train; that then she took in her arms a child that was with her and started across the track, looking again in both ' directions when between the tracks; that smoke and steam from a freight train that then was passing under a bridge one hundred and seventy feet to her right obscured to some degree the view of an express train approaching from that direction; that, as she was stepping off the last track, she was struck by the express train which was running at the rate of fifty to sixty miles an hour without giving any warning by bell or whistle and which at the bridge had been running at the rate of from thirty to thirty-five miles an hour. Held, that there was evidence that when struck the intestate was in the active exercise of due care, and that her death was caused by negligence for which the defendant was accountable under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1.</p> <p>At the trial of the above described action, the plaintiff, subject to an exception by the defendant, was permitted to show that, after the accident, the defendant had erected a fence between the tracks in front of the station which prevented passage to and from the station from and to the -street whence the plaintiff’s intestate had come, the evidence being specifically limited to the issue, whether “it was physically possible and practically possible to build such a fence and to maintain such a fence in the conduct of the business of the defendant.” There was no evidence that the defendant contended that it was either impossible or impracticable to erect and maintain such a fence. Held, that the evidence should not have been admitted.</p> <p>Referring to the evidence, above described, at the close of his charge to the jury, the presiding judge stated, “The fact that the defendant did not maintain a fence between the inward and outward bound tracks cannot be considered as evidence of negligence at that time.” Held, that this instruction was not sufficient in form to eradicate from the minds of the jury the effect, prejudicial to the defendant, of the evidence improperly admitted.</p> <p>It also was stated that, in order to cure the error in the admission of the evidence above described, the judge should have instructed the jury to disregard for any purpose of proof the fact that a fence had been erected by the defendant between the tracks after the accident.</p>

<p>Contract, upon certain covenants in a lease by the plaintiff to the defendants of a building on Canal Street in Boston. Writ dated October 4, 1915.</p> <p>The action was referred to an auditor under a rule which provided that his findings of fact should be final.</p> <p>The material provisions of the lease were as follows:</p> <p>“The Lessees during the continuance of this lease, at their own expense are to keep all and singular the premises in such repair, order and condition as the same are in at the commencement of said term, and make all repairs, replacements and improvements of whatever nature, inside and outside of the building, or on the demised premises, the elevator, boiler, steam, water or gas piping, electric motor, or any other machinery or fixtures in said building, damage by fire or other unavoidable casualty excepted but this exception shall not limit the liability of the lessees as to damage caused by water coming in to the cellar or drain pipes or plumbing as aforesaid. . . .”</p> <p>“The Lessees hereby acknowledge that the said premises including steam, water or gas piping, machinery, elevator, electric motor, boiler and fixtures are now in first class condition. . . .</p> <p>“And the Lessees do hereby, both individually and severally covenant with the Lessor that the Lessees during the said term and for such further time as they or any other person or persons claiming under them shall hold the said premises or any part thereof, will pay unto the Lessor the said rent at the times, and in the maimer aforesaid (except as hereinafter provided), and will keep all and singular the said premises including machinery, elevator, motor, boiler and fixtures in such repair, order and condition as the same are in at the commencement of said term, or may be put in during the continuance thereof reasonable use and wearing thereof and damage by fire or other unavoidable casualty only excepted and further agree that they will pay all taxes beginning with the taxes of 1910 and assessments of every description which may be payable either by landlord or tenant, promptly when due, whether assessed by the City of Boston or the Commonwealth of Massachusetts, and to pay taxes if any assessed on the interest of the mortgagee in said premises, the taxes to be paid by the lessees hereunder, but not including assessments, to be assessed on a valuation not exceeding the total assessed value of the property, and will pay all charges for water; . . . and will peaceably yield up to the Lessor the said premises, and all erections and additions made to or upon the same, in good repair, order and condition in all respects, reasonable use and wearing thereof and damage byfire or other unavoidable casualty excepted; . . . and no trade or occupation shall be carried on upon the said premises, or use made thereof which shall be unlawful, improper, noisy, or offensive, or contrary to any law of the Commonwealth or ordinance or by-law for the time being in force, of the city or town in which the premises are situated, or injuries to any person or property; . . .”</p> <p>Among other findings of the auditor were the following:</p> <p>“The elevator in the building in question originally was used as a combination passenger and freight elevator, but since the occupancy of the defendants under the lease of June 1, 1910, they used it for freight purposes only. . . .</p> <p>“I find that, at the time the notice was received from the building commissioner, the elevator was deficient in the particulars specified in such notice; and that the prices paid by the plaintiff, who had had a long experience in the care of numerous properties and the charge of repairs connected therewith, for the work and materials comprised in the various items of such list were fair and reasonable. . . .</p> <p>“Item 5 is for ‘grill work top of elevator, winding armature and other work on elevator, $110.00.’ The elevator originally had an overhead platform or covering of grille-work on the top which had become broken and was partially removed during the tenancy of the defendants. The work charged for in this item was for replacing such covering, for re-winding the armature in order to reduce the speed of the elevator, which was excessive, for renewing the shoes, which are made of iron and are the guides at the bottom of the elevator which hold it in place while travelling up and down, and for general work in repairing and placing the elevator in condition to conform to the requirements of the elevator regulations- previously mentioned. The defendants had a contract with the firm which did the work for the plaintiff, by which the firm inspected the elevator weekly and made the ordinary adjustments and necessary repairs in the proper maintenance of the elevator, and, after the receipt of the notice from the building commissioner to the plaintiff previously mentioned, the defendants employed the firm to do a large amount of work, which included the last three items enumerated in such notice, namely, straightening the drum shaft, overhauling the machine, and changing the shipper rope to the inside of the car. The things done and charged for by the plaintiff were those which the defendants neglected or refused to do. It is agreed that the sum of five dollars included in this item is for work done on other premises and should be deducted. I therefore allow this item for the sum of $105.</p> <p>“Item 6 is for ‘repairs to controller and installing light in car, $28.80.’ Of this amount the sum of $11 was for repairs to the controller, which is part of the machinery that runs the car, after the termination of the tenancy and after the defendants had made all the repairs that were necessary to put the elevator in a good running condition, and it is agreed that this sum should be deducted. The balance of the item, namely $17.80, was for installing a light in the car, which was made necessary by the elevator regulations, and I therefore allow this item for the sum of $17.80. . . .</p> <p>“Item 8 is for ‘installing light in machine room, $14.00.’ There was no light in the machine room prior to this time, and the installation of this light was required by the elevator regulations. I therefore allow this item. . . .</p> <p>“Item 14 is for ‘covering with sheet iron the four slide elevator doors, $16.00.’ These were the grille-work doors which were so covered with sheet iron in order to make them fire-proof. I allow this item. . . .</p> <p>“Items 5, 6, 8 and 14, amounting, as allowed, to the sum of $152.80, represent work which it would not have been necessary to do during the term of the defendants’ lease if it had not been for the requirements of the notice from the building commissioner; and all evidence that the work was done because of such requirements was admitted against the objection of the defendants.”</p> <p>“The defendants offered to prove ‘that the properties are assessed in Boston as of April 1, 1915, and that the assessors then make up their lists and valuations and complete them sometime during the summer in June or July, and that the State tax, and if there is a county tax, the taxes other than the city tax, are sent into the city budget which is added to them, and that the rate is then figured on the amount of money that must be raised for all taxes that are to be paid, and with the valuation of the properties in accordance with the assessors’ lists that tax rate is figured, and then the tax bills are made up, and up to that time, which is about October 1, there is no opportunity to pay, or as a matter of custom has it ever happened that any taxes are paid, in the city of Boston before this time.’ The plaintiff objected to this offer of proof as immaterial, and I excluded it.”</p> <p>The plaintiff moved for judgment upon the auditor’s report. The motion was heard by Lawton, J., who denied certain requests of the defendants for rulings, described in the opinion, and ordered judgment for the plaintiff in the sum of $2,141.43; and the defendants alleged exceptions, and also filed an “appeal . . . from the decision, order or judgment of the Superior Court in ordering judgment for the plaintiff.” No judgment for the plaintiff was entered.</p>

<p>Tort for personal injuries received on November 12, 1910, while the plaintiff was upon the platform of the defendant’s station at Wakefield under the circumstances described in the opinion. Writ dated December 13, 1910.</p> <p>In the Superior Court the action was tried before Pratt, J. The material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. There is not sufficient evidence to justify a verdict for the plaintiff.</p> <p>“2. The jury are not justified in finding negligence on the part of the defendant or of its agents or servants if they find that the only steam near the train was the steam which came from the engine.</p> <p>“ 3. The jury are not justified in finding that the plaintiff was in the exercise of due care.</p> <p>“4. If the jury find that the plaintiff was confused by steam coming from between the cars while he was attempting to board a moving train, the plaintiff cannot recover.”</p> <p>The judge gave the second and the fourth rulings and refused to give the first and the third.</p> <p>The defendant requested the judge to order a verdict for the defendant, but the judge submitted the case to the jury upon the following stipulation, which was agreed to by the counsel for both parties: “If the jury find a verdict for the defendant, the verdict is to stand. If the jury find a verdict for the plaintiff, the verdict is to be set aside and the case reported to the Supreme Court with the stipulation that if the ruling of the court ordering a verdict for the defendant is correct, there shall be judgment for the defendant. If ruling or ordering a verdict by the court for the defendant was incorrect, then judgment is to be entered for the plaintiff in the sum found by the jury.”</p> <p>The jury found for the plaintiff in the sum of $3,000, which verdict the judge immediately set aside in accordance with the terms of the stipulation and by his order the jury returned a verdict for the defendant. After the death of Pratt, J., the case was reported, according to the terms of the stipulation by Hardy, J.</p>

<p>Bankruptcy, Bights of trustee. Equity Jurisdiction, Minority stockholder’s bill. Corporation.</p> <p>In a suit in equity by a trustee in bankruptcy to compel the transfer to him of three hundred shares of the par value of $10 each of a certain corporation, which had been issued to the wife of the plaintiff’s bankrupt on the payment by her of $1,000 in cash, it appeared that the corporation in question was a family concern that had been organized some time before the bankruptcy to take over and conduct the business formerly carried on by the bankrupt, two hundred shares having been issued to the bankrupt which had come into the possession of the plaintiff as his trustee. The bill contained no offer to rescind the transaction or to return to the wife of the bankrupt the $1,000 paid by her, and the trial judge found that no such offer was made. There was no finding that the shares in the corporation held by the plaintiff had been depreciated in value or that the necessary working capital of the corporation had been impaired by the failure of the wife of the bankrupt to pay in cash the remainder of her subscription for the shares issued to her. The judge found that the transaction complained of by the plaintiff took place some seventeen months before the adjudication in bankruptcy and when all the incorporators and all the stockholders in the corporation, including the bankrupt, with full knowledge of the circumstances assented to the issuing of the stock. No attempt nor intention to mislead or defraud the public by placing valueless stock on the market was shown or even suggested. The judge made a decree dismissing the bill. Held, that the decree was right.</p> <p>In the case above described it was said that the question what, if any, remedy the plaintiff might have against the president, treasurer and directors of the corporation under St. 1903, c. 437, § 14, upon showing actual damages caused to him by the issuing of the stock when not fully paid for, was not before the court.</p> <p>In the same case it was said that under the circumstances disclosed by the evidence the plaintiff, as a trustee in bankruptcy, notwithstanding the amendment of 1910 to the bankruptcy act of 1898, had no greater rights or equities than his bankrupt would have had in a similar suit if not a bankrupt.</p>

<p>Negligence, Employer’s liability, Violation of statute. Evidence, Competency,, Matters of conjecture. Statute, Construction. Words, “Hoistways.”</p> <p>A paper manufacturing corporation maintained a mill in the State of Rhode Island with a well lighted room three hundred and eighty-seven feet long and about sixty-six feet wide, without partitions, and containing at one side a machine about one hundred and seventy-five feet long and ten feet wide, a travelling crane for the transportation of rolls of paper from one part of the room to another, and, thirty-four feet from one end and somewhat to the side of the centre of the room away from the machine, a hatchway six feet and eight inches in diameter covered, when closed, with a door made from the boards which had been sawed from the floor to make it, with a countersunk ring and with no hinges. Rolls of paper three feet high and from thirty inches to three feet in diameter were discharged from the machine in the ordinary course of manufacturing and were strewn around the floor at the end where the hatchway was and at the side where the machine was. A mechanical engineer of large experience, who had been employed by the corporation for three months, fell into the hatchway when in the course of his duties he was hastening to assist in putting the crane, which needed repairing, in order, and brought an action at common law against his employer for injuries so received, at the trial of which on conflicting evidence the jury might have found that when-closed the hatchway was not ordinarily noticeable and that the plaintiff never had seen it open, never had been told of it, and never had noticed it and did not know that it was there, and that he never had known of a trap door in such a place in a factory; that on the occasion of his accident he was picking his way among the rolls of paper to the crane, glancing at the crane carriage from time to time, and, “the next he recalls is that he woke up in bed.” The defendant offered evidence tending to show that the open hatchway was guarded by rolls of paper piled around it. Held, that the question, whether the plaintiff was in the exercise of due care, was for the jury.</p> <p>The fact that, at the trial of the action above described, the plaintiff could not recollect what occurred up to the moment of the accident, where it also appeared that the plaintiff when he fell received a severe blow on the head and there was testimony of a physician that a person receiving such a blow ordinarily loses recollection of everything occurring immediately before the blow, did not make the circumstances of the happening of the accident so much a matter of conjecture as to make the case an improper one for the jury to consider.</p> <p>There being evidence at the trial of the action above described tending to show that the hatchway was not an obvious condition of the defendant’s business, it could not be ruled as a matter of law that the plaintiff assumed the risk of the injury which he received.</p> <p>Since, on the conflicting evidence at the trial above described, the jury might have found that the hatchway was left open and unguarded, or insufficiently guarded by an improper arrangement of the rolls of paper about it, and that the plaintiff had not been warned of its presence, the question of the defendant’s negligence was for the jury.</p> <p>In the action above described a verdict was ordered for the defendant and the plaintiff alleged exceptions. From the record it did not appear that the point was raised that, as a matter of law, if negligence of any one caused the plaintiff’s injury, it was negligence of fellow servants of the plaintiff, so that he could not recover; but it was stated, that such a ruling could not properly have been given, because the jury might have found that, if the rolls were used as barriers for the hatchway, they were improper materials for the defendant to furnish for that purpose, and that the method of guarding the hole by the rolls was known to the defendant, was adopted by it, and was improper in that it ren dered the place more rather than less dangerous.</p> <p>The hatchway above described, which was used for the purpose of lowering rolls of paper into the basement of the factory, could have been found to have been a hoistway, which, by Gen. Laws of Rhode Island, 1909, c. 129, § 16, should have been protected by sufficient railings, gates or other mechanical devices; and therefore such statute was evidence which was material and admissible to show that, by a violation of the statute, the defendant was negligent.</p>

<p>Contract, Avoidance by reason of mutual mistake, Construction, Rescission, Abandonment. Mistake. Waiver. Evidence, Materiality. Practice, Civil, Variance.</p> <p>A contract can be rescinded by reason of a mutual mistake of fact by the parties to it only when the mistake relates to a fact which is of the essence of the contract.</p> <p>A contract between a pile driver and a corporation, which provided that the pile driver should furnish and drive a certain number of piles at a certain price per pile for the foundation of a building being constructed by the corporation for a third party “ according to plans and specifications,” was entered into after an investigation by the pile driver as to the material into which the piles were to be driven, and without any fraud, concealment or misrepresentation, intentional or innocent, on the part of the corporation or of any of its employees. Both parties afterwards discovered that the material into which the piles were to be driven, instead of being soft, as they both mistakenly had believed, contained boulders and broken rock, which made the driving of the piles difficult but not impossible. Held, that the mutual mistake of the parties was not as to a fact which was of the essence of the contract.</p> <p>At the trial of cross actions between the parties to the contract above described, evidence that the corporation’s president told the pile driver at a time after the real character of the soil was discovered to “ keep account of day work until the piers are excavated,” “to call it day work and keep account of it, at the time,” was held on the record to relate to a claim of the pile driver “for extra money” to cover the extra expense of driving certain piles, and not to warrant a finding of a termination of the contract by mutual assent, especially when there was no evidence that the corporation’s president had. authority so to assent on behalf of the corporation.</p> <p>At the trial of the above described action, there was evidence that the corporation agreed that, upon request by the pile driver, it would excavate to a certain depth around certain piles, and that, after the unforeseen difficulty of driving the piles was discovered, such requests were made by the pile driver which were not complied with by the corporation, and it was held that such failure to excavate under the circumstances was.not a breach of a term of the contract between the parties, the performance of which, was essential to the continuance of the work by the pile driver, and did not give him a right to repudiate the contract.</p> <p>The question, what other remedies the pile driver might have under the contract for such failure of the corporation to excavate when requested, not being raised on the record, was not determined.</p> <p>Where, at the trial of the action above described, a material issue was, whether the plaintiff had waived the making by the defendant of payments in accordance with the provisions of the. contract, testimony of the vice president and manager of the defendant as to the method in which requisitions for payments submitted to the owner of the building, which included items for piles and for driving piles, were compiled, and the amount of work which had been done by the pile driver at various times when payments were due to him, was material and admissible, although the contract required payment to the pile driver according to the requisitions, no matter how they were compiled.</p> <p>In a cross action by the corporation against the pile driver for failure of the pile driver to perform his contract and for damages resulting from his abandonment of it which required the corporation to complete it for the owner, an allegation in the declaration that the corporation had overpaid the pile driver was held to be a mere allegation of damage and to be treated as surplusage, so that failure to prove it could not be ruled as matter of law to constitute a variance.</p>

<p> Mechanic’s Lien. Statute. Payment. Bills and Notes. </p> <p>The provisions of St. 1915, c. 292, which was enacted on May 28, 1915, and went into effect on January 1, 1916, repealing the mechanic’s lien law in R. L. c. 197 and substituting a new law different in substance and procedure, do not affect a lien acquired under the former law nor proceedings, begun in March, 1915, to enforce such a lien.</p> <p>Where, upon a petition for the establishment of a mechanic’s lien, it appears that the respondent delivered to the petitioner a promissory note for the amount of the debt, it cannot be ruled as a matter of law that such note was taken by the petitioner as payment nor that it was his intention thereby to waive and surrender the security of the lien.</p> <p>At the trial, upon a petition for the enforcement of a mechanic’s lien under R. L. c. 197 under a contract for the installation of an elevator in a building of the defendant, of an issue, whether the petitioner filed his claim within thirty days after he ceased to perform and furnish labor under the contract, it appeared that the contract price was $2,400 and there was evidence warranting a finding that, sixteen months after the elevator had been turned over to the respondent for operation and had been approved by the municipal building ' inspector, the petitioner in good faith sent workmen who performed work amounting to $4.90 in completion of the contract and that within thirty days thereafter the claim was filed. The jury answered the issue in the affirmative. Held, that under the circumstances neither the delay in completing the contract nor the trifling character of the work done therefor was fatal to the maintenance of the lien.</p>

<p>Libel for divorce on the ground of desertion, filed in the Superior Court on July 22, 1916.</p> <p>The libel was uncontested and was heard by Fox, J. The material evidence and facts found by the judge are described in the opinion. The judge reported the case for determination by this, court.</p> <p>The case was submitted on a brief by the libellant.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to John Borin for an injury sustained by him on June 27, 1916, when employed in the dye room of the William Ryle Company at Newton Upper Falls.</p> <p>The case was heard by Lawton, J. The material portion of the evidence is described in the opinion. The following statement of the testimony of the employee is taken from the report of the arbitration committee:</p> <p>“John Borin, the employee, testified, through an interpreter, that on Tuesday, June 27, 1916, he was employed by the insured corporation in its dye room at Newton Upper Falls. It was a very warm day and it was very hot in the room and there was a lot of steam there. He wanted to get some fresh air and taking a hammer and chisel tried to pry open one of the windows back of the dye tubs. He was obliged to climb over the tub to get to the window. The window was held shut by a bracing which was nailed against the sash. He inserted the chisel between the bracing and the window frame and struck the chisel with his hammer; something flew into his eye. He got the window open and remained at work until six o’clock that night, his usual hour of quitting, and worked on Wednesday and Thursday. His eye was getting worse all the time and he never saw anything out of it after it was struck, Tuesday afternoon. ... He cannot see out of the eye now. He had been working for the insured for five or six weeks at the time of his injury and had charge of the tubs in the dye house. The tubs extended along one side of the room close to the wall and are filled with boiling liquid. Steam is constantly coming from the tubs. The window which he tried to open was one of a row of seven along the side of the room back of the tubs, the tubs covering the lower sashes of all the windows. There was another row of seven windows higher up on the wall above these and these windows were opened at the time. On the other side of the room where the windows are similarly arranged, the upper row was opened. There are twenty-six dormer-windows in the roof, thirteen on each side; these windows were not opened. The foreman never told him not to open these windows back of the tubs. He felt very warm and thought he would open them. After he was struck in the eye by a piece of the chisel he asked the man next to him if his eye was gone and the man told him it was bleeding. He did not think it was serious and didn’t show it to his boss until Friday. . . . There was so much steam in the room that he thought he would open the window and let some of it out. The steam boils the dyes and makes the room extremely hot. . . . There were only two persons who worked at his end of the room, one was himself and the other was a man whose first name was August; August was with him when he opened the window.”</p> <p>The foreman of the room testified that, "beside Borin, August Glaneiweiski tended the tubs at the end of the room where the employee was injured. On the other side of the room it is not difficult, to get at the bottom windows. No orders were ever given not to open these windows and there are no notices prohibiting the opening of them. He remembers the week in which the employee was injured and it was a'pretty hot week.”</p> <p>No new evidence was introduced before the Industrial Accident Board, who decided the case upon the report of the arbitration committee.</p> <p>The judge made a decree in accordance with the decision of the Industrial Accident Board ordering the insurer to pay to the employee $93.60 on account of total incapacity for work: and $7.20 weekly for a period of fifty weeks from June 27, 1916, on account of the loss of vision in the injured eye. The insurer appealed.</p>

<p>Workmen’s Compensation Act. Evidence, Matters of common knowledge. Words, “Filed.”</p> <p>It is matter of common knowledge that the great war began more than five weeks after June 24, 1914.</p> <p>Absence from the country and ignorance of the law cannot be found to be a reasonable cause for failing to file a claim under the workmen’s compensation act within six months after the injury or death; of an employee that is the basis of the claim.</p> <p>An employee died here as the result of an injury arising out of and in the course of his employment, leaving in Poland a wife and two daughters and in this country a son eighteen years and seven months of age, with whom the employee lived. The employee never had helped his son and the son on two occasions gave money to the father to be sent home. The father never sent home any of his own earnings. His wife lived in Poland on a farm owned by her husband and hired a man to work it after the employee left. The injury and death of the employee were in June, 1914, the great war began on August 1 of that year, and the last time that the son heard from his mother was at Christmas, 1914. An administrator of the estate of the employee was appointed seven months after his death, and more than eight months after his death the first claim for compensation was mailed by the administrator to the Industrial Accident Board, but it did not appear that it ever was received by that board. A proper claim for compensation was filed with the board more than fifteen months after the death. The Industrial Accident Board found that the failure to make the claim within six months after the death of the employee “was occasioned by mistake or other reasonable cause” within the meaning of the workmen’s compensation act. Held, that there was no evidence to warrant this finding of the board.</p> <p>The mailing of a claim for compensation addressed to the Industrial Accident Board is not a filing of the claim with the board within the meaning of the workmen’s compensation act.</p> <p>In the requirement of St. 1912, c. 571, § 5, that a claim “shall be filed with the Industrial Accident Board” the word “filed” means that the paper on which the claim is written must be delivered physically into the possession of the board.</p> <p>In the same case it appeared, in addition to the facts stated above, that the employee left his wife seven months before his death and stated that he “intended to have her come over later on.” The Indusrial Accident Board found that the widow was living with her husband at the time of his death and therefore was conclusively presumed to have been wholly dependent upon his earnings for support. Held, that this finding was not warranted by the evidence, and that there was no evidence that the wife was living apart from her husband for a justifiable cause within the meaning of the act, and that therefore the question of the dependency of the widow was to “be determined in accordance with the fact.” In the present case, no investigation of this matter having been made either by the arbitration committee or by the Industrial Accident Board, it was said that in this respect there had been a mistrial.</p> <p>In the same case it appeared that the deceased employee had worked in this country about two months before his injury and had received the pay of $12 a week, and that during the previous five months that he was in this country he had been unemployed. The Industrial Accident Board found that “the average weekly wages of the deceased employee were $12.” Held, that there was no evidence to warrant this finding under St. 1911, c. 751, Part V, § 2, which provides that “‘Average weekly wages’ shall mean the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two,” and that “Where, by reason of the shortness of the time during which the employee has been in the employment of his employer, or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined,” the amount of compensation shall be arrived at in one of two other ways, neither of which appeared to have been resorted to in the present case.</p> <p>By St. 1911, c. 751, Part III, § 10, as amended by St. 1912, c. 571, § 13, in a claim under the workmen’s compensation act "No party shall as a matter of right be entitled to a second hearing upon any question of fact,” and ordinarily where there has been a full hearing there shoxdd be no new trial. In the present case, where an award had been made upon findings unwarranted by the evidence, although certain matters had remained untried which would have been material if the claimant had been entitled to compensation, it was clear that no claim for compensation had been filed in accordance with the requirements of the statute, and it was ordered that the decree should be reversed and a decree entered to the effect that there was no claim against the insurer.</p>

<p>Two actions of tort under R. L. c. 51, the first under § 18 for personal injury to, and the second under § 17 for the loss of the life of the plaintiff’s intestate under the circumstances described in the opinion. Writs dated December 29, 1915.</p> <p>In the Superior Court the cases were tried before Dana, J. The material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings and instructions:</p> <p>“ 1. That upon the facts, as alleged in the declaration, and upon all the evidence introduced, the defendant is not liable for the damage done to the plaintiff’s intestate.</p> <p>“2. If the jury find that the accident was caused by the negligence of the superintendent of streets, either in the way the oil was applied or in not sanding afterwards, then the city is not liable.”</p> <p>The judge declined so to rule and instruct. The jury found for the plaintiff in the first -action in the sum of $700, and in the second action in the sum of $2,800; and the defendant alleged exceptions.</p>

<p>Equity Jurisdiction, Plaintiff must come into court with clean hands, Accounting sought by participant in illegal business. Corporation. Monopoly. Wrongdoer without Remedy.</p> <p>One of the stockholders in a corporation which has been conducting with profit a monopolistic business in violation of St. 1908, c. 454, cannot maintain a bill in equity in which he alleges that profits from the business have been distributed to other stockholders and not to him and seeks to compel an accounting and a distribution to him of his share of the profits in the way of dividends, because the court will not lend its assistance to the promotion of an unlawful adventure.</p> <p>The mere fact, that a prayer in such bill is that the corporation be restrained from continuing to manage its affairs and from conducting its business in violation of the statute, does not amount to a renunciation of an illegal executory contract such as would purge the plaintiff of his share in the illegality, because he already has shared in the illegality and the profits which he seeks to share were the result in part of his so sharing.</p>

<p> Workmen’s Compensation Act. </p> <p>The fact that a report of an injury sustained by an employee was made by his employer to the Industrial Accident Board three days after the injury was sustained is amply sufficient to warrant a finding that the employer as a subscriber under the workmen’s compensation act had knowledge of the injury within the meaning of St. 1911, c. 751, Part II, § 18, so that want of notice is not a bar to proceedings under the act.</p> <p>Upon a claim made under the workmen’s compensation act by one employed as a foreman by a painter for compensation for reduction of vision in his right eye and total and partial incapacity alleged to have been due to lead poisoning, the Industrial Accident Board made its -findings and decision wholly upon the report of the arbitration committee. That committee found that upon the evidence the employee received an injury arising out of and in the course of his employment. The only evidence reported was a statement in narrative form of the testimony of the employee and of several physicians. The report of the committee contained no findings of specific facts nor did it state any conclusions drawn from the evidence in support of the general finding. It was contended by the insurer that the condition of the employee was not due to his employment but had existed long previously thereto. Held, that it was the duty of the Industrial Accident Board to have made such specific and definite findings upon the evidence reported as would enable this court to determine whether the general finding should stand, and that, in the absence of such specific findings, a decree made in accordance with the decision of the Industrial Accident Board must be reversed and the case be re-committed to that board, where the employee might move that findings of specific facts be made upon which the board based its finding that the employee received an injury arising out of and in the course of his employment; that, if such motion should be allowed and such findings should be made, the case should be considered anew, and that otherwise a decree should be entered for the insurer.</p> <p>A mere general finding of the Industrial Accident Board declaring in the words of the statute that an employee has received an injury arising out of and in the course of his employment is not a compliance with the intention of the Legislature as expressed in St. 1911, c. 751, Part III, § 7, as amended by St. 1912, c. 571, § 12.</p>

<p>Deed. Trust. Charity. Words, “Or,” “Philanthropic.”</p> <p>A voluntary deed of trust, signed and sealed by a settlor and delivered to the trustee therein named together with certain bonds and stocks to be held in accordance with its terms, which contains no condition as to its taking effect and no power of revocation, although not acknowledged or recorded, cannot be revoked or modified by the settlor, and a second deed of trust executed by the settlor attempting to change the terms of the first deed is of no effect.</p> <p>No assent by any beneficiary under such a deed of trust is necessary to its validity.</p> <p>A fund created by a deed of trust, at the termination of certain life interests, to be appointed to a “national or philanthropic purpose in Norway associated with the name of my late husband, Ole Bull,” was held to constitute a charity.</p> <p>In the description of the charitable purpose quoted above the word “or” was construed to mean “and,” thus requiring the purpose to be both national and philanthropic, as well as to be executed in Norway, where Ole Bull, whose achievements were a just source of pride to the Norwegian people, was in a sense a national hero.</p> <p>By the deed of trust named above the settlor gave a power of appointment by deed or will of the trust fund to the settlor’s daughter, and provided that, “In case my said daughter shall die without issue and without directing the payment of said principal, in whole or in part, as above provided, said principal and any accumulation of income thereon shall be paid, either in equal shares to the surviving children of my said brother or to the carrying out of the purpose above described, at the discretion of the Trustee.” After the death of the settlor, the settlor’s daughter died without issue within the meaning of the trust instrument, and by her will attempted to appoint the trust fund in perpetuity for the maintenance of a private estate to the use of certain individuals in their personal capacity. Held, that, the attempted appointment by the daughter being invalid and she having died without issue, the right to make the appointment vested in the trustee.</p> <p>In the same case it was held that an appointment of the fund by the trustee would be proper to the Ole Bull Fund Committee, which was established by royal charter in Norway to administer the surplus moneys collected for the Ole Bull monument in Norway and not needed for that purpose, and the income of which was to be applied directly or by accumulations to the distribution of donations to the younger musicians, actors and actresses holding engagements with the “National Stage of Bergen,” which was founded by Ole Bull and was in a sense a national theatre of Norway.</p>

<p>Devise and Legacy, Time of vesting.</p> <p>A testator by Ms will provided that a fund of $20,000 should be set apart for the support and maintenance of Ms deceased brother’s widow, who was to be paid such amounts of either principal or income and at such times as she might reqmre, and that, if at her death any unexpended balance should remain, it should be paid in equal parts to two nieces of the testator and their heirs and assigns. Held, that the interest of the Meces in the remamder of tMs fund vested at the death of the testator.</p>

<p>Contract with three counts, the first for damages of $1,115 for the defendant’s refusal to receive certain electric light bulbs which the plaintiff alleged that the defendant ordered, the second on a promissory note for $372 given in payment for other electric light bulbs and the third on an account annexed for the price of electric light bulbs valued at $187.80. Writ in the Municipal Court of the City of Boston dated May 1, 1914.</p> <p>On removal to the Superior Court the case was tried before Fox, J. At this trial the jury returned a general verdict for the plaintiff in the sum of $1,770.02.</p> <p>The defendant moved that the verdict be set aside and for a new trial and assigned as reasons therefor the following:</p> <p>“1. The verdict is against the law and the evidence.</p> <p>“2. That the verdict is against the weight of the evidence.</p> <p>“3. That the damages assessed by the jury were excessive.”</p> <p>The judge ordered a new trial in the following words: "There was no sufficient ground for a verdict on the first count. It is ordered, therefore, that the verdict be set aside and a new trial had upon the question of damages only, unless the plaintiff remits so much of the verdict as is in excess of the sum of $610 within twenty days from this date.” The plaintiff alleged exceptions. The bill of exceptions stated that “$610 was that part of the verdict to which the plaintiff would have been entitled on the second and third counts. The second and third counts are not in issue here.” The evidence included in this bill of exceptions is described in the opinion. In allowing the bill of exceptions the judge made the following statement: “Without admitting that the reasons given by me under the statute for ordering a new trial are properly subject to exceptions, or present, or were intended to present, any question of law, I allow this bill of exceptions. The plaintiff objects and excepts to this qualifying statement.”</p> <p>There was a new trial before Keating, J., upon the issue of damages only, it being “ stipulated between the parties, with the approval of the presiding judge, that the plaintiff would be in no way barred from prosecuting its exceptions taken at the first trial by proceeding to trial' on damages only at the second trial.” The course of this trial, including the amendment of the third count, and the material evidence, as well as the plaintiff’s offers of proof, are described in the opinion.</p> <p>The judge instructed the jury as follows:</p> <p>“The only question submitted to you at this trial is a question of damages, and on the second count on which the plaintiff seeks to recover the amount of the promissory note, it is admitted that' the note was signed by the defendant and delivered to the plaintiff, and, there being no evidence before you showing the payment of that note, I direct you to find for the plaintiff for the amount of the note and interest.</p> <p>“On the third count it is admitted that the lamps for which the plaintiff seeks to recover a certain price were delivered by the plaintiff to the defendant, and that the price set forth in the third count of the plaintiff’s declaration is the agreed price between the parties for the goods; so you will find for the plaintiff on the third count, and I direct you to return a verdict for the plaintiff in the sum of $643.40.</p> <p>“The plaintiff is not entitled to recover on the first count.”</p> <p>The plaintiff alleged exceptions, this being his second bill of exceptions.</p> <p>The defendant also alleged exceptions taken at the trial before Keating, J., upon the issue of damages only. These exceptions are described sufficiently in the opinion.</p>

<p>Railroad, Pass issued to employee, Passenger. Evidence, Presumptions and burden oí proof. Contract, Validity. Negligence, Contract to avoid liability, Railroad, Invited person, Causing death.</p> <p>A pass issued by a railroad corporation to an employee for transportation between his work and his home within the State is presumed to have formed a part of the consideration for which the employee enters and continues in the employ of the corporation.</p> <p>Such a pass not being a gratuity, the employee while travelling upon the railroad by use of it is entitled to the rights of a passenger, and a provision of the pass to the effect that the corporation shall be exonerated from all liability from negligence of itself, its servants or agents is invalid as against public policy, so that, if the employee is killed, while so travelling after his working hours, by reason of the negligence of an employee of the corporation, the administrator of his estate can maintain an action against the corporation under St. 1906, c. 463, Part I, § 63, as amended by Sts. 1907, c. 392; 1912, c. 354.</p> <p>St. 1913, c. 784, § 18, as amended by St. 1914, c. 679, § 1, has not changed the law as established by Doyle v. Fitchburg Railroad, 166 Mass. 492, which was reaffirmed.</p> <p>Evidence that, when a railroad train stopped at a certain station, gates, which were on the sides of platforms of the cars away from the station and which permitted egress from the ears to a track upon which trains ran in the opposite direction, were left open and that there was a long established custom for passengers to alight on that side of trains at that station, warrants a finding of an invitation by the railroad corporation to its passengers so to alight; and, if such is found to be the fact, the corporation owes to its passengers so alighting the duty to refrain from negligence toward them in the running of trains on the adjoining track.</p>

<p>Equity Pleading and Practice, Plea in bar, Appeal. Equity Jurisdiction, For appointment of trustee under written instrument. Probate Court, Jurisdiction. Trust.</p> <p>Where the defendant in a bill in equity in the Supreme Judicial Court under R. L. c. 147, § 5, for the appointment of a trustee under a written instrument to fill a vacancy caused by the resignation of a former trustee, .the instrument making no provision for such appointment, files a plea in bar, if the plaintiff sets the plea down for a hearing, he admits, for the purpose of the hearing, the truth of the allegations therein; and if upon such hearing the plea is adjudged insufficient in point of law, it should be overruled, but, if it is adjudged sufficient in point of law, the plaintiff may take issue upon the facts alleged in it, and, if the facts are found to be as the defendant alleges, the bill should be dismissed.-</p> <p>If, upon the filing in the Probate Court of a petition under R. L. c. 147, § 5, for the appointment of a trustee under a written instrument to fill a vacancy caused by the resignation of the former trustee, the instrument making no provision for such appointment, that court orders a citation to issue, the proceedings thereupon are pending in that court, which thus acquires exclusive jurisdiction of the subject matter of the petition; and such pendency is a bar to a bill in equity thereafter brought in the Supreme Judicial Court as to the same subject matter.</p> <p>Upon an appeal from a decree in equity, only the record of the case is transmitted to this court, and it is wholly irregular for the parties by an agreement among themselves without the assent of the judge of the trial court to attempt to add facts to the record.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Partnership. Equity Pleading andPractice, Appeal, Trial of issues by jury, Master, Auditor, Exceptions. Evidence, Materiality. Contract, Implied.</p> <p>A suit in equity may be maintained to reach and apply, in payment of a debt due to the plaintiff from two of the defendants who are copartners, shares of stock in a Maine corporation, which belonged to the partners and which had been placed with a bank under an agreement between one of the partners and a third person, also a defendant, whereby, if the third party so elected, he could by a certain date pay a certain sum of money and receive the shares of stock from the bank, and, in case he did not so elect, the shares should be returned to the partners; the alternative, contingent and vested rights of the partners under the agreement to a redelivery of the shares of stock or at the third person’s option to receive money in place of the stock, being valuable rights which the plaintiff as a creditor of the partnership could not enforce through an action at law.</p> <p>A reference of a suit in equity to a master is a matter of discretion which ordinarily is not a subject of review on appeal or exception.</p> <p>After a suit in equity to reach and apply equitable assets in payment of a debt due to the plaintiff has been referred to a master who has filed a report and after an interlocutory decree has been entered setting aside the report and discharging the reference, it is within the discretionary power of a judge to vacate such decree, to frame issues for the jury as to whether the alleged debt was owed to the plaintiff by the principal defendants, and to order that the master’s report be treated as the report of an auditor at the trial of the issues. In the present case an appeal from an interlocutory decree made in the exercise of such discretion was dismissed.</p> <p>After the entry of the interlocutory decree that the master’s report be treated as the report of an auditor, objections and exceptions to the report, filed when it was a master’s report, become immaterial.</p> <p>At the trial of issues framed for a jury in a suit in equity against a copartnership for the collection of an alleged charge for professional services as a lawyer rendered to the copartnership in connection with devising a plan whereby certain rights owned by the copartnership could be sold, it appeared that one means suggested and carried through by the plaintiff was the incorporation of the business of the copartnership. There was evidence that the plaintiff rendered to the corporation when incorporated a bill for services performed in procuring such incorporation, which was much smaller than that to the partnership which was the basis of the suit, and that he received payment of that bill. Evidence was offered by the plaintiff and was admitted in explanation of the reason for the rendering of the bill to the corporation, and there was conflicting evidence as to whether the bill to the corporation was intended to include the services to the copartnership. That question was left to the jury, who answered that it was not so intended. Held, that the evidence explanatory of the bill to the corporation was admitted properly; and that it could not be ruled as a matter of law that the rendering of the bill to the corporation and receiving payment of it barred the claim against the copartnership.</p> <p>At the trial of such issues, it was proper to admit evidence tending to show that an attorney at law, who questioned the right of the defendants to sell their rights above described, had been referred by one of the defendants to the plaintiff as their counsel, that the attorney had conferred with the plaintiff and that the plaintiff had convinced the attorney of the feasibility and practicability of his plan.</p> <p>At the trial of the issues above described, it was held that, in connection with other portions of the charge of the judge to the jury defining the rights and obligations of the parties, it was proper for the judge to rule that “the plaintiff is entitled to recover the full value of all his services rendered less such sums as he has received from the defendants [copartners] and the corporation, and whether the plaintiff did or did not include all [his] services in [the] bill [to the corporation above described].”</p> <p>It further appeared in the above described suit that an ad interim injunction had issued directing the third party, in case he elected to purchase the stock in accordance with his agreement with one of the copartners, to retain an amount sufficient to pay the plaintiff’s claim, that the third party had done so and had filed an answer so stating, that subsequently he had died and that an administrator of his estate had represented it to be insolvent and a commissioner in in- . solvency had been appointed. Held, that the equitable lien in favor of the plaintiff followed the proceeds in the hands of the third party, and that the plaintiff’s claim should be presented to the commissioner in insolvency.</p>

<p>Devise and Legacy, Specific legacy. Trust, Construction.</p> <p>A testator, who at the time of the making of his will had a son thirteen years of age and two daughters still younger and was a member of a copartnership, in a will drawn with care and skill at the end of a paragraph making ten pecuniary legacies in separate clauses, included a clause reading as follows: “As it is my purpose to preserve as far as possible for the benefit of my son my interest now or to be acquired in the business now being conducted as a partnership ... I desire, in the event of my interest in said business being represented by shares of stock, that the above bequests and gifts be made from my property other than from the said shares of stock or their sale.” The succeeding paragraph of the will placed the rest and residue of the property in the charge of trustees, among other purposes to use one quarter of the income for the support and education of the son until he was twenty-one years of age, and a quarter each for the support and education of the daughters until they reached twenty-five years of age, and, when the children respectively reached such ages, to divide the principal among them in equal portions. Shortly after the execution of the will the business of the partnership was incorporated, and less than two years after its date the testator died. Held, that the quoted clause did not constitute a specific bequest to the son of shares of stock in the corporation, nor could it be construed to be a specific bequest by implication.</p> <p>It was stated that a reasonable interpretation of the clause above quoted was, that the testator hoped that his son at some future time would become identified with the business which the testator had established, and that he had confidence that the trustees, acting in harmony with the other members of the family, so far as possible would respect his wishes and would carry them into effect.</p>

<p>Contract to recover expenses for the inspection of certain piling of the railroad bridge over the Cape Cod Canal, alleged to have been incurred by the plaintiffs for the benefit of the defendant under the provisions of the contract described in the opinion. Writ dated November 26, 1915.</p> <p>In the Superior Court the action was heard by Hardy, J., without a jury. The material facts are stated in the opinion. The judge ruled that the word “bridge” as used in paragraph 6 of the agreement between the parties dated May 2, 1910, referred to the entire structure spanning the distance between the two banks, refused rulings of a contrary import asked for by the defendant and found for the plaintiffs in the sum of $218.20. The defendant alleged exceptions.</p>

<p>. Two petitions, filed respectively on March 12 and March 22, 1917, by the Tax Commissioner, each for a writ of mandamus ordering the respective respondents to file a return of his and her taxable income for the year 1916 as required by law.</p> <p>Each of the cases came on to be heard by Loring, J., upon the petition, the answer and agreed facts. In each case the single justice found the facts to be as stated in the agreed facts and at the requests of the parties reported all questions of law for determination by the full court.</p> <p>The cases were argued together at a special sitting of this court on April 13, 1917, before Rugg, C. J., Loring, Braley, De Courcy, & Pierce, JJ., and afterwards were submitted on briefs to all the justices.</p>

<p>Municipal Corporations. Springfield. Evidence, Presumptions and burden of proof. Words, “Purchase,” “Again consider.”</p> <p>The city council of Springfield in laying out a highway does not act as an agent of the city but as a board of public officers, and in the performance of that public duty the members of the board are bound to assess damages, when such an assessment is required, according to their honest judgment unrestricted by anything contained in St. 1915, c. 263.</p> <p>In the provision of St. 1915, c. 263, § 1, that, “Whenever the price proposed to be paid for a lot of land for any municipal purpose is more than twenty-five per cent higher than its average assessed valuation during the previous three years, the land shall not be taken by purchase but shall be taken by right of eminent domain,” the word “purchase” is used in a restricted sense by way of contrast to " eminent domain” and describes the acquisition of land by a voluntary transfer of title by the owner to the city after an agreement as to terms.</p> <p>The presumption that unless the contrary appears everyone is assumed to have acted from proper motives applies to the conduct of public officers as well as to that of individuals.</p> <p>Upon a petition for a writ of certiorari to quash the proceedings for the laying out of Dwight Street in Springfield, it appeared that such laying out for a considerable distance was in effect a widening of a pre-existing street by taking a tract of land about twenty feet in width from the front of lots abutting on that street, and it was held that the record did not show, and the facts did not require the inference, that the awards of damages were not made in the exercise of honest judgment.</p> <p>In the case above described it appeared that many of the owners of land whose property would be affected by the laying out of Dwight Street proposed in writing to the city council to accept stated sums in settlement of any damages which they might sustain, provided the street was laid out within a certain period, and also agreed to pay a sum not exceeding a given amount as betterments, and in a few out of many instances the awards corresponded exactly with the offers made by the landowners either as compensation for the fee of an entire parcel or for an easement over a part of the land, and it was held that this did not show that the action of the city council was influenced improperly by the offers.</p> <p>In the case described above the order laying out the street authorized the city treasurer to pay the amounts awarded as damages “if said owners shall not attempt to recover damages by instituting proceedings for the recovery thereof,” and it was held that the order did not undertake to prevent a landowner from exercising the right to have his damages assessed by a jury, that the laying out was not made conditional upon the acceptance of the award by the landowner and that the provision quoted above did not vitiate the layout.</p> <p>In the case described above the part of the offers of the landowners in regard to the amounts that they were willing to pay by way of betterments was not accepted by the city and there was no reference to that subject in the order laying out the street, so that it was unnecessary to consider whether it would have been possible for the city to make any contract that could hamper in any respect the freedom of action necessary for the performance by the board of aldermen as independent public officers of the quasi judicial act of assessing betterments.</p> <p>A vote upon the question, whether a measure shall be passed in either branch of a city council notwithstanding the objections of the mayor, may be reconsidered, provided that such reconsideration is in accordance with the rules governing the procedure of the voting body.</p>

<p>Petition, filed in the Superior Court on December 4, 1916, by the Northern Massachusetts Street Railway Company under St. 1909, c. 490, Part I, § 77, for the abatement of a tax assessed by the town of Westminster as of April 1, 1916, upon a high tension power transmission line used by the petitioner in connection with the operation of its street railway in that town.</p> <p>The case was heard by Jenney, J., upon an agreed statement of facts, which, among other statements, contained the following: “The petitioner is a street railway corporation duly organized under the laws of this Commonwealth, owning and operating a street railway, a part of which is located in said town of Westminster in said county of Worcester, and a part of its property there situated consists of a high tension power transmission line, so called, running over a course distinct from the course of its tracks, used for the transmission of electric current for the operation of the petitioner’s said street railway and consisting of poles and wires thereon, all erected on private land not owned in fee by said petitioner but belonging to persons other than the petitioner, said petitioner owning, by lease or purchase, only the right to maintain on said private land of others its poles and wires thereon as aforesaid; that the electric current transmitted through said power transmission line, although used by the petitioner for the operation of its street railway as aforesaid, is manufactured and furnished to the petitioner by another private corporation and is purchased under contract between said other corporation and the petitioner and delivered into the said transmission line, the property of the petitioner as aforesaid.”</p> <p>The petitioner asked the judge to make the following rulings:</p> <p>“2. Under the pleadings and facts of this case the petitioner is entitled to an abatement of so much of the tax assessed to it in 1916 by the town of Westminster as was assessed upon its high tension power transmission line (consisting of poles and wires thereon, erected upon private property not owned by the petitioner, but over which it owns a right of way for the maintenance of said power transmission line), and to judgment for $172.52, the agreed amount of said portion of the tax and interest.</p> <p>“3. Under the pleadings and facts of this case the petitioner is entitled to an abatement of the tax assessed in 1916, by the town of Westminster upon its high tension power transmission line, consisting of poles and wires thereon erected upon a right' of way owned by the petitioner over private land, and to judgment for $172.52, the agreed amount of said tax with interest.</p> <p>“4. Under the pleadings and facts in this case the petitioner’s high tension power transmission line consists of poles and wires thereon used in connection with the operation of its street railway over a course distinct from the course of its tracks, erected upon private land upon a right of way owned by the petitioner.”</p> <p>The judge refused to make these rulings, and found that the petitioner was not entitled to an abatement. He ordered judgment for the respondent; and the petitioner alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed in the Superior Court on August 30, 1916, under St. 1903, c. 437, § 51, for the dissolution of the Allen-Foster-Willett Company, a domestic.manufacturing corporation theretofore engaged in the manufacture of boots and shoes at Lynn.</p> <p>On the same day a decree of dissolution was entered, which contained the provisions that are stated in the opinion.</p> <p>In accordance with this decree receivers were appointed, who on November 21,1916, filed their first report.</p> <p>The Manufacturers National Bank of Lynn, a creditor, and John H. Willett, a minority stockholder, who also had been the president of the corporation and one of its directors, appeared as intervenors to object to the allowance of the report. Frederick Allen, who was the Allen mentioned in the opinion, was a director of the corporation and up to the time of its dissolution had been its treasurer and its general manager.</p> <p>The objections to the report made by the Manufacturers National Bank were as follows:</p> <p>“1. That Frederick Allen, general manager, treasurer and director, and Charles H. Foster, secretary and director, of said Allen-Foster-Willett Company, and while holding said several offices, purchased a large number of accounts payable of said company for about eighty per cent of their face value. That said accounts appear in said report as having been approved by said receivers for their face value and if said report is allowed said receivers intend to pay dividend or dividends thereon based on their face value. That said Allen and Foster hold said accounts in trust for the benefit of said company and no payments thereon should be allowed for an amount in excess of the amounts paid for said accounts by said Allen and Foster, or either of them.</p> <p>“2. That Frederick Allen, general manager, treasurer and director, and Charles H. Foster, secretary and director, of the Allen-Foster-Willett Company, and while holding said several offices, made certain contracts and purchased large amounts of merchandise and incurred other obligations in behalf of and as the duly authorized agents and officers of said company, and as such officers acquired other information concerning the records, accounts, contracts, and other obligations and creditors of said company. That by reason thereof said Allen and Foster were enabled to purchase and did purchase for about eighty per cent of their face value and now hold a large number of accounts payable of said company. That said accounts appear in said report as having been approved by said receivers for their face value and said receivers intend to pay a dividend or dividends thereon based on their face value. That said Allen and Foster hold said accounts in trust for said company and no payments thereon should be allowed for an amount in excess of the amount paid for said accounts by said Allen and Foster, or either of them.</p> <p>“3. That there is due said company a large sum of money from said Frederick Allen for advancements. That there is a further large sum of money due said company from said Allen, said amount being the difference between $75 per week authorized and $100 per week that as treasurer he paid to himself without authority. That it is believed that said Foster is indebted to said company but it is not known for what amount. That said receivers intend if said report is allowed to pay said Allen and Foster the full dividends thereon without setting off or deducting therefrom the amounts due said company by said Allen and Foster or either of them. That said receivers should not be allowed to pay any dividend on the accounts held by said Allen and Foster except on the amount found to be due on an accounting between said company and said Allen and Foster.</p> <p>“4. That, in view of the fact that the receivers have filed no inventory and there has been a great and unexplained dissipation of the assets of the company over $206,000 and because of the matters and things set forth in detail in the accompanying affidavits, justice requires that said report be not allowed without further inquiry and investigation and that the Manufacturers National Bank be allowed to become a party thereto.”</p> <p>The objections to the report made by John H. Willett were as follows:</p> <p>“1. The debts which appear to have been approved and allowed by the receivers according to said report, and upon which the receivers intend to pay a dividend, or nearly all of said debts, the particulars of which are to your respondent unknown, have been all bought up at a discount by Frederick Allen or Charles H. Foster on behalf of Frederick Allen and Charles H. Foster, as appears by letters, copies of which are hereto annexed, and that both said Frederick Allen and said Charles H. Foster have heretofore been officers and employes of said Allen-Foster-Willett Company; that said Frederick Allen is now and for a long time past has been á director, treasurer and general manager of said Allen-Foster-Willett Company, and the said Charles H. Foster is now and for a long time past has been a director and clerk of said Allen-Foster-Willett Company.</p> <p>“2. Since August 30, 1916, the date of the decree for dissolution of the Allen-Foster-Willett Company and the appointment of the receivers, both said Frederick Allen and said Charles H. Foster have continued to render service to said corporation, and have been constantly informed of the doings of the receivers and the situation relating to the winding up of said corporation.</p> <p>“3. Prior to August 30, 1916, the date of the decree for dissolution of said corporation, the said Frederick Allen as general manager and treasurer was sole financial manager of the business of said corporation, and the said Charles H. Foster had principal charge of the manufacturing plant of said corporation and had special knowledge relating to all merchandise bought and received by said corporation; that in consequence of their relations to said corporation the said Frederick Allen and Charles H. Foster had special and peculiar knowledge and information regarding the accounts due from said corporation, that said information was acquired in the course of their employment by said corporation and while they were acting in a fiduciary capacity for said corporation; that the receivers of said Allen-Foster-Willett Company depended upon, and had a right to information relating to any debts presented against the said Allen-Foster-Willett Company from said Allen and Foster; that the approval of said debts by the receivers was in consequence of the approval of said debts by said Allen and said Foster; that any defence to any of said debts presented against said company depended upon the information and testimony of said Allen and said Foster.</p> <p>“4. Your respondent is informed and believes and therefore avers that said accounts were purchased by said Allen and said Foster prior to the filing of any report of the claims approved and allowed by the receivers in this case.</p> <p>“5. Your respondent is informed and believes and therefore avers that said purchase of accounts as aforesaid is a fraud upon said Allen-Foster-Willett Company and upon him as a stockholder; that any excess above the amount actually paid by said Allen or said Foster for the purchase of said debts is the property of the Allen-Foster-Willett Company or its receivers; that said receivers ought not to pay on account of said claims any amount in excess of the sum paid therefor by said Allen or said Foster; that to allow the report now offered might result in the payment to said Allen and said Foster of an amount in excess of the cost of said claims, to said Allen and said Foster.</p> <p>“Wherefore your respondent respectfully prays:</p> <p>“First: That before the allowance of said report this court determine the exact cost of said claims purchased by said Allen or said Foster on behalf of either said Allen or said Foster.</p> <p>“Second: That said claims be not allowed for any sum in excess of the amount paid therefor by the said Allen or the said Foster.</p> <p>“Third: That your respondent be permitted to participate in any proceeding in relation to the determination of the amount paid for said claims by the said Allen or the said Foster.”</p> <p>The case came on to be heard before Lawton, J., upon the receivers’ report and the objections of the Manufacturers National Bank and John H. Willett thereto; and, after having heard the parties upon agreed facts, which are described in substance in the opinion, the judge overruled the objections, allowed the report and made a decree thereon dated December 28, 1916; and, the objectors making no objections to the distribution 'of 'a dividend to the extent of seventy per cent as therein ordered, upon all other questions raised by the objections, at the request of the objectors, the judge reported the case for determination by this court upon the petition and the decree appointing the receivers, the receivers’ first report, the objections to that report, the stipulation as to facts and the decree upon the report, such decree, order or modification of the decree to be entered as this court should determine. The case was submitted on briefs.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to Annie Bean as the dependent widow of Edward T. Bean, who at the time of his injury on May 19, 1915, which resulted in his death on May 25, 1915, was employed in the park and recreation department of the city of Boston, the claim being made under St. 1913, c. 807.</p> <p>The case was heard by Fox, J. The evidence reported and the proceedings are described in the opinion. The second motion of the employer to recommit the case to the Industrial Accident Board, mentioned in the opinion, was as follows:</p> <p>“Now comes the city of Boston, employer in the above entitled case, and moves that the case be recommitted to the Industrial Accident Board:</p> <p>“1. In order that the memorandum sent by the Industrial Accident Board to the Superior Court in said case may be corrected and amplified.</p> <p>“2. Because the Industrial Accident Board failed to consider and pass upon the motions made by the city of Boston before the full board in the above entitled case.”</p> <p>The motion was denied by the judge; and the employer appealed from the order denying the motion.</p> <p>By order of the judge a decree was entered in accordance with the decision of the Industrial Accident Board, awarding to Annie Bean as the dependent widow of Edward T. Bean, employee, the sum of $10 a week for a period of four hundred weeks from May 19, 1915. The employer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tax, On legacies and successions. Trust, Character of. transferable certificate of ownership in partnership and trust property. Partnership. Voluntary Association.</p> <p>The general proposition is unquestioned that an equitable estate in land outside the Commonwealth owned by one domiciled in the Commonwealth at the time of his death is not subject to a legacy and succession tax here.</p> <p>Where a trust was created to take over and carry on a factory and manufacturing business theretofore owned and carried on by a New Hampshire corporation, where the factory and tangible personal property held under the trust are in that State and where the provisions of the declaration of trust are such as to create a partnership and it is provided therein that upon the termination of the trust all the partnership real estate shall be converted into personalty and that during the existence of the partnership the property of the trust shall be represented by transferable certificates, all the property of the trust must be regarded as having been converted into personalty from the beginning to constitute one fund, and the certificates representing the shares in the trust are personal property. Consequently such shares held by a testator domiciled in Massachusetts at the time of his death are subject to a legacy and succession tax here.</p> <p>Where the property of an association called a ground rent trust was held by trustees under a declaration of trust and consisted eighty-five per cent of real estate situated outside of Massachusetts and fifteen per cent of personal property accumulated since the creation of the trust by the operation of an annual sinking fund, where the beneficial interest was divided into shares represented by transferable certificates issued by the trustees and where the declaration of trust provided that at a time fixed therein “or at such earlier time as three fourths in value of the shareholders may . . . appoint” the trustees should terminate the trust by selling all the property then held' by them and distributing the proceeds among the shareholders, the property of the trust including the realty must be regarded as having been converted into personalty to constitute one fund, so that the shares in the trust are personal property and their transfer by the will of a testator domiciled in this Commonwealth is subject to a legacy and succession tax here.</p> <p>Where the property held under a deed of trust consisted only of two parcels of land, one in the State of Minnesota and the other in the State of Michigan, where the Minnesota land belonged one quarter each to a husband and his wife domiciled in this Commonwealth and the remaining half to a third person, and the sole beneficial owner of the Michigan land was the third person, where the wife domiciled in this Commonwealth had a lien upon the beneficial interest of the third person in both of the parcels to secure the payment by such third person to her of the sum of about $9,000, where the declaration of trust contained no provision for the issuing of certificates to represent the beneficial interests but there was a provision putting restrictions upon the assignment of such interests and it was provided that the real estate remaining unsold at the end of twenty years should be sold and the proceeds divided proportionally among the beneficial owners of the property, and where the wife mentioned above died testate before the expiration of the twenty years, making her husband the sole residuary devisee and legatee under her will, it was held that the wife’s direct beneficial interest of a quarter share in the Minnesota land was real estate, the transfer of which by will was not subject to a legacy and succession tax in this Commonwealth, but that the wife’s interest as beneficial pledgee, for about $9,000, of the third person’s beneficial interest in the land both' in Minnesota and Michigan was personal property, the passing of which by will was subject to such a tax.</p> <p>A beneficial interest in land is not made personal property by the fact that it is assignable by a writing complying with the requirements of R. L. c. 127, § 3, without a conveyance by deed.</p> <p>Whether the fact that the sole trustee under a deed of trust of real estate outside of Massachusetts is a resident of this Commonwealth, if it stood alone, would be sufficient to make the passing by will of a beneficial interest in such trust subject to a legacy and succession tax in this Commonwealth, it here was not necessary to decide.</p>

<p>Landlord and Tenant. Contract, Construction. Insurance, Eire.</p> <p>A lease of a business building contained the following provision: “Provided also that in case said premises or any part thereof are injured by fire or other casualty the rent reserved shall be abated in proportion to the extent to which said premises are thereby rendered unfit for use by the Lessee until the premises are restored as hereinafter provided. If such injury does not exceed fifty (50) per cent of the value of the building immediately before the injury as determined by the adjustment of insurance the Lessor shall, as soon as may be, restore said premises to the condition they were in before such injury, so far as this can be done out of the proceeds of the insurance.” A fire occurred, the injury by which was less than fifty per cent of the value of the building. The fire destroyed certain panels and stucco work put into the building by the lessee. A fire insurance company in adjusting the loss with the lessor allowed an amount sufficient to restore the panels and the stucco work to the condition they were in before the fire, but the lessor did not restore them. The lessor brought an action for rent under the lease. The whole of the lease was not set forth in the report to this court, and it did not appear whether it contained a covenant by the lessor to' keep the premises insured for the benefit, in part, of the lessee. Held, that on the record it must be taken that the lessor was at liberty to insure or not to insure at his pleasure, but, as it appeared that he had elected to insure and had received the insurance money for the panels and the stucco work added to the premises by the lessee, he came under the obligation of the covenant to restore the premises “ to the condition they were in before such injury,” and that the lessee was entitled to an abatement from his rent which should include the amount of the cost of such restoration.</p>

<p>Contract, by a corporation described in the opinion, to recover the amount of two yearly fees of $60 each alleged to have been due respectively on September 10, 1913, and September 10, 1914, under a contract in writing dated September 10, 1912, which is described in the opinion. Writ in the Municipal Court of the City of Boston dated March 24, 1915.</p> <p>The defendant’s amended answer contained the following allegations:</p> <p>“And the defendant further says that if the plaintiff proves that the defendant entered into the contract set forth in the plaintiff’s declaration, then the defendant avers and will prove that the plaintiff held itself out to be lawfully qualified to practise law in the courts of this Commonwealth and held itself out or represented itself to be an attorney or counsellor at law and to receive a fee for its services acting in such capacity; but that the plaintiff contrary to said laws and public policy of the aforesaid Commonwealth of Massachusetts unlawfully and illegally engaged in the practice of law.</p> <p>“That the agreement set forth in the plaintiff’s declaration is an agreement whereby the plaintiff for a consideration agrees to render legal services to the defendant contrary to R. L. c. 165.</p> <p>“That said agreement was illegal and void under the laws of the Commonwealth of Massachusetts and contrary to public policy.”</p> <p>On removal to the Superior Court the case was tried before Keating, J. At the close of the evidence the plaintiff asked the judge to make the following rulings:</p> <p>“1. That on all the evidence the plaintiff should recover.</p> <p>“ 2. That on the evidence the jury must find for the plaintiff on its declaration.</p> <p>“3. That the contract declared on and in evidence is legal and valid.</p> <p>"4. That under said contract the plaintiff does not assume to act as an attorney-at-law or to practise law.</p> <p>“5. That under said contract the plaintiff does not hold itself out as an attorney-at-law or entitled to practise law.</p> <p>“6. That the plaintiff in securing for collection under the contract declared on the claims of the defendant, in attempting to secure settlement of these by demand by letter and in forwarding the same to attorneys at law, whether under salary or otherwise compensated, to be by them investigated and acted upon in the attorney’s discretion and judgment was not engaged in the practice of law.”</p> <p>"8. That the fact that under the contract declared on the plaintiff agreed and stood ready to furnish to the defendant the advice of duly qualified attorneys at law free of charge to her does not constitute the practice of law by the plaintiff.</p> <p>“9. That the plaintiff did not by its contract undertake to practise law.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury with other instructions, of which the material part is quoted in the opinion. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>R. L. c. 165, § 45, is as follows: “Whoever has been so removed and continues thereafter to practise law or to receive any fee for his services as an attorney at law rendered after such removal, or who holds himself out, or who represents or advertises himself as, an attorney or counsellor at law, and whoever, not having been admitted to practise as an attorney at law in accordance with the provisions of this chapter, represents himself to be an attorney or counsellor at law, or to be lawfully qualified to practise in the courts of this Commonwealth, by means of a sign, business card, letterhead or otherwise, shall, upon a first conviction, be punished by a fine of not more than one hundred dollars or by imprisonment for not more than six months, and, upon any subsequent conviction, by a fine of not more than five hundred dollars or by imprisonment for not more than one year.”</p>

<p>Contract for the price of two portraits of the defendants’ testator painted by the plaintiff, one in oils and the other in pastel. Writ dated April 1, 1915.</p> <p>The plaintiff’s amended declaration was as follows:</p> <p>“First count. The plaintiff says the defendants’ testator hired and employed the plaintiff to paint two portraits of the defendants’ testator, one an oil painting and the other a pastel painting, to the satisfaction of the defendants’ testator, and agreed to pay the sum of $2,000 for each painting, when the same were completed; that the plaintiff, in accordance with the instructions of the defendants’ testator, painted said portraits and tendered the same to the defendants’ testator, who refused to accept and pay for them; that the plaintiff painted said portraits in an artistic, workmanlike and satisfactory manner, to the satisfaction of defendants’ testator; that the plaintiff further, in accordance with instructions of the defendants’ testator, procured frames for said portraits, and in so doing expended $200, ¡which sum the defendants’ testator also refused to pay; that the defendants, as executors of the will of said testator, have also refused to accept and pay for said portraits and frames; wherefore the plaintiff says that the defendants, as executors, owe the plaintiff the sum of $4,200.</p> <p>“Second count. The plaintiff says that the defendants, as executors, owe the plaintiff the sum of $4,200, according to the account hereto annexed, with interest.</p> <p>“Both counts being for the same cause of action.”</p> <p>In the Superior Court the case was tried before Callahan, J. The evidence is described sufficiently in the opinion. A part of the judge’s charge was as follows:</p> <p>“So far as the writing referred to is concerned, unless you find that the testator perpetrated a fraud upon the plaintiff, the plaintiff may not recover on the present state of the pleadings in this case for the oil painting, because, in the absence of fraud, in view of his admission that he signed the statement, the law would hold him to the effect of that writing. If there was no fraud, then the writing represents the true contract between the parties, so far as the oil painting is concerned. I am not now referring to the pastel. And, unless you do find fraud, the plaintiff may not recover for the oil painting on the present state of the pleadings. I think that is about all I can say to you in view of the inquiry.</p> <p>“ As to whether there was or was not fraud, it is not necessary for you so to state in your verdict. You will merely return a verdict for the plaintiff for so much money or for the defendant.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,200. After the verdict had been returned, the judge asked the foreman of the jury the following questions and received the following answers:</p> <p>“Did you find the defendants liable to the plaintiff under the alleged contract for an oil painting?” The foreman answered, “No.”</p> <p>“Did you find the testator, Mr. Bradford, guilty of fraud in any of his transactions with the plaintiff?” The foreman answered, "No.”</p> <p>The defendants alleged exceptions relating to the exclusion of a question to a witness as described in the opinion.</p> <p>R L. c. 175, § 67, is as follows: “If the cause of an action brought against an executor or administrator is supported by oral testimony of a promise or statement made by the testator or intestate of the defendant, evidence of statements, written or oral, made by the decedent, memoranda and entries written by him and evidence of his acts and habits of dealing tending to disprove or to show the improbability of the making of such promise or statement shall be admissible.”</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, Minority stockholder’s bill. Corporation, Rights of minority stockholder. Equity Pleading and Practice, Bill, Amendment.</p> <p>A suit in equity cannot be maintained by minority stockholders in a corporation against corporate officers and the corporation for the redress of individual wrongs of the plaintiffs, but such bill only can be maintained for the benefit of the corporation and for the redress of wrongs done by its officers to it.</p> <p>An allegation in a bill in equity by minority stockholders in a corporation against the corporation and the controlling officers that the suit is brought by the plaintiffs “on behalf of themselves and all other shareholders of said . . . corporation who shall come in and contribute to the expenses of this suit” is not a sufficient allegation that the suit is brought for the benefit of the corporation.</p> <p>In this case leave was given to the plaintiffs under St. 1913, c. 716, § 3, to amend the bill to overcome the defect above described.</p> <p>On a demurrer to a minority stockholders’ bill in equity against the officers of the corporation and the corporation wherein the plaintiffs sought relief from acts of fraudulent conversion, waste and dissipation of corporate assets and other wrongdoing to the corporation, allegations that “ it is useless to request the corporation to take action because the board of directors consist of the persons named” as defendant “officers and directors,” and, as to each of several specific wrongful acts described, that such acts were committed by the “ officers or directors or some of them,” were held not to set forth an adequate reason for a failure of the plaintiffs to ask the corporation’s board of directors to institute remedial proceedings for its protection, because such allegations were consistent with the wrongful acts being of a minority of the board of directors only, while a majority remained faithful and honest but ignorant of the wrongful conduct of their associates, so that, since no intendment could be made in favor of the bill, it was not sufficiently alleged that it would have been an idle form to seek remedial action by the board.</p> <p>In the same bill two paragraphs contained allegations of acts done in fraud of the corporation by four of the five directors, naming them, and it was held that such allegations stated an adequate reason for the plaintiffs’ not seeking to have the board of directors act in the corporation’s behalf, so that as to those paragraphs the demurrer was overruled.</p>

<p>Tort under the federal employers’ liability act to recover for the death of the plaintiff’s intestate, Leon L. Cruzan, the declaration containing two counts, the first count alleging as the cause of the death “negligence in whole or in part of one of the officers, agents or employees of the defendant,” while the second count alleged as such cause “a defect or insufficiency due to the negligence of the defendant in its cars, engines, appliances, machinery, track, roadbed or other equipment.” Writ dated May 14, 1915.</p> <p>In the Superior Court the action was tried before Chase, J. The material evidence is described in the opinion. The judge ordered a verdict for the defendant upon the second count of the declaration and refused to rule, as requested by the defendant at the close of the evidence, that the plaintiff could not recover on the first count. The jury found for the plaintiff on the first count in the sum of $7,000; and the defendant alleged exceptions.</p>

<p>Contract for one month’s salary alleged ’"to be due to the plaintiff as probation officer of the Superior Court for Suffolk County for the month of January, 1917. Writ dated February 2, 1917.</p> <p>In the Superior Court the action was heard by Hardy, J., without a jury, upon an agreed statement of facts, among which were the following:</p> <p>On April 8, 1899, for the first time a committee on probation matters was appointed by the justices of the Superior Court. On June 6, 1903, it was voted by the justices “That the selection and appointment of probation officers, the determination of their compensation, the supervision of their work, and everything incidental thereto, be assigned to the committee, . . . [[naming three justices] . . . to be as far as possible exclusive of action by other Justices.” A probation committee, varying in membership, continued in existence from that time to the date of the hearing. The foregoing vote as to the authority of such committee had not been modified, and no other vote had been passed affecting its powers, and such probation committee had continuously acted in the appointment of, and fixing the salary of, probation officers throughout the Commonwealth.</p> <p>On December 21, 1911, at a meeting of the justices of the Superior Court, it was voted: “ That until further order the standing committees of the Justices shall be as follows: . . . Probation . . ., — and shall consist of the Chief Justice and such Associate Justices as he may appoint.” Acting under the authority of the foregoing vote, the Chief Justice appointed as members of the probation committee other than himself Justices Stevens, Sanderson and Brown. On December 16, 1916, that committee passed the vote described below and immediately thereafter handed to Bell, J., who then was holding court in the criminal session in Suffolk County, a paper reading as follows:</p> <p>“The Superior Court</p> <p>Boston, December 16, 1916</p> <p>“At a meeting of the Committee on Probation of the Superior Court held this day, it was voted that Allison G. Catheron of Beverly, Massachusetts, be appointed Probation Officer of the Superior Court for Suffolk County, to be in charge of all probation work therein, with authority to exercise supervision over all other probation officers of the Superior Court in said county.</p> <p>“His term of office shall begin January 1, 1917, and his salary shall be thirty-five hundred dollars per year.”</p> <p>The committee requested Bell, J., to appoint the plaintiff probation officer for Suffolk County with the authority and upon the salary stated in that paper. On December 18, 1916, Bell, J., in open court handed to the clerk the paper he had received from the committee, and the clerk took possession of it and in the ordinary course of business added to the paper the words, “By the Court, John P. Manning, Clerk.”</p> <p>On February 6, 1917, Bell, J., who then still was holding the Superior Court for criminal business for the County of Suffolk presented to the clerk of that court the following order: —</p> <p>“Superior Court</p> <p>Suffolk, ss.</p> <p>Having on December 16, 1916, ordered the appointment of Allison G. Catheron in open court as probation officer, and some question having been made as to the terms of said appointment, I now order as of said December 18th as follows:</p> <p>Allison G. Catheron is appointed to be Probation Officer for Suffolk County, to be in charge of all probation work therein, with authority to exercise supervision over all other probation officers of the Superior Court in said County.</p> <p>“His term of office shall begin January 1, 1917, and his salary shall be thirty-five hundred dollars per year, such having been my purpose and intention in making in open Court said order of December 18, 1916.”</p> <p>No meeting of the justices of the Superior Court was called or held for the purpose of appointing and fixing the salary of the plaintiff as probation officer except as above stated.</p> <p>It was agreed, that if the appointment of the plaintiff was made legally by the Superior Court, he was entitled to the amount claimed in his declaration, and, if the appointment was not made legally, judgment was to be entered for the defendant.</p> <p>Other material facts are stated in the opinion. The trial judge found for the plaintiff in the sum of $293.46; and the defendant appealed.</p>