Volume 230 — Massachusetts Reports

<p>Petition, filed in the Probate Court for the county of Bristol ■X>n March 29,1917, by the owner of the reversion of a certain tract •of land with the buildings thereon on South Main Street in Fall .River, subject to a lease to Henry C. Saunders of Cranston in the State of Rhode Island dated November 19, 1906, for the term of fifteen years from November 20, 1906, praying for the appointment of a trustee under the provisions of R. L. c. 48, § 17, to hold for the benefit of the petitioner and the lessee according to their respective interests the damages awarded for the talcing ,of a portion of such tract of land for the widening of South Main Street.</p> <p>The Probate Court appointed a trustee as prayed for, and the respondent appealed, contending that the case was governed by R. L. c. 48, §§ 20-25, and not by § 17 of that chapter. The appeal was heard by Braley, J., who was of opinion that the decree of the Probate Court should be affirmed, but at the request of the respondent reported the case for determination by the full court. The material facts in regard to the subleases are stated in the opinion.</p>

<p>Tort against a physician for negligently giving a false opinion in writing that a certain Delia Harkins, to whom the plaintiff had been engaged to be married, was pregnant, by reason of which the plaintiff was arrested on a complaint of Delia Harkins charging him with getting her with child, whereas Delia Harkins was not pregnant at the time that the defendant made his examination of her. Writ dated May 8, 1916.</p> <p>In the Superior Court the cáse was heard by Hardy, J., without a jury. He found for the defendant. The plaintiff appealed from the decision. The defendant moved that the plaintiff’s appeal be dismissed and that judgment be entered on the finding. The motion was granted and it was ordered by the judge that judgment be entered for the defendant. The plaintiff appealed “from the decision of the court in ordering that judgment be entered for the defendant.”</p> <p>The case was submitted on a brief by the plaintiff.</p>

<p>Complaint, received and sworn to in the Central District Court of Northern Essex on January 3, 1917, charging that the defendant on January 2,1917, “ did then and there go upon the ice of Crystal Lake, so called, in Haverhill, and did fish in said lake, without a permit to do so of the board of water commissioners of the said city of Haverhill, in violation of the rules and regulations of the State board of health of the said Commonwealth.”</p> <p>In the Superior Court the case was tried before Dubuque, J., on an agreed statement of facts. Upon the agreed statement of facts the judge instructed the jury, subject to the defendant’s exception, that they would be warranted in returning a verdict of guilty. Thereupon the jury returned such a verdict, and the judge, being of opinion the question raised by the defendant’s exception ought to be determined by this court, reported the case for such determination.</p> <p>R. L. c. 75, § 113, as amended by St. 1907, c. 467, § 1, is as follows: “Said board may cause examinations of such waters to be made to ascertain their purity and fitness for domestic use or their liability to impair the interests of the public or of persons lawfully using them or to imperil the public health. It may make rules and regulations to prevent the pollution and to secure the sanitary protection, of all such waters as are used as sources of water supply. Said board may delegate the granting and withholding of any permit required by such rules or regulations, to State boards and commissions and to selectmen in towns and to boards of health, water boards and water commissioners in cities and towns, to be exercised by such selectmen, boards and commissions, subject to such recommendation and direction as shall be given from time to time by the State board of health; and upon complaint of any person interested said board shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health.”</p> <p>The case was submitted on briefs.</p>

Appeal under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board making an award to Santa Pagnoni and Guiseppe Pagnoni jointly, the mother and father of Vincenzo Pagnoni, a deceased employee, as his next of kin partly dependent upon his earnings-for support at the time of his injury and death.

<p>Appeal from a decree of the Probate Court of the county of Essex allowing the alleged will of Mary Jane Hawkes, late of Marblehead. The following issues, which were framed in the Supreme Judicial Court, were sent to the Superior Court for trial:</p> <p>"1. Was the instrument propounded for probate as the last will and testament of Mary J. Hawkes executed according to law?</p> <p>“2. Was the instrument propounded for probate as the last will and testament of Mary J. Hawkes procured through fraud and undue influence of Sarah E. Hawkes? ”</p> <p>The issues were tried before Callahan, J. The evidence upon the question of attestation is described in the opinion. At the close of the evidence the proponent of the will asked the judge to make the following rulings:</p> <p>“3. If the attesting witnesses subscribed the attestation clause in the presence of the testatrix and understood the instrument was her will, the execution of the will is sufficiently proved, if in fact the testatrix has signed the paper, although the attesting witnesses have not seen her sign or seen the signature itself.</p> <p>“4. If the jury find that the three attesting witnesses subscribed the attestation clause in the presence of the testatrix, knowing or understanding they were witnessing her will, and the instrument had been signed by the testatrix before such attestation, then they will find the will was properly executed.”</p> <p>The judge refused to make either of these rulings. Among other instructions he instructed the jury as follows: “a will, in order to be valid, must be signed in the presence of the three witnesses mentioned by the statute, or, if it has been previously signed, the testator or person making the will must then acknowledge that the signature which he exhibits to the witnesses, is his. Unless one of these things is shown, the attestation is. insufficient and the will does not stand.” He also instructed the 'jury as follows: “If the jury should find that the signature of the testatrix was concealed from the witnesses, or either of them,, and that they, or either of them, were not aware of its being on said alleged will and did not see it or know of such signature' being there, then your answer to the first issue should be ‘No’;, and again I modify that by saying: provided she had not already in fact signed the will in their presence.”</p> <p>The jury answered both issues in the negative; and the proponent of the will alleged exceptions.</p>

Petition, filed in the Probate Court for the county of Essex on January 5, 1916, by William Jackson Phillips of Sioux City in the State of Iowa, alleging that the petitioner is the son and the only-living heir of John C. Phillips, late of Swampscott, who died on June 20, 1896, intestate, and praying to be appointed the administrator de bonis non of the estate of such intestate, not fully-administered.

•Bill in equity, filed in the Superior Court on October 14, 1915, by the owner of the estate numbered 34 on North Russell Street in Boston, including the fee in the adjoining four foot passageway called Russell Place, against the owner of the building numbered 32 on North Russell Street and adjoining the other side of Russell Place, to restrain the defendant from trespassing upon the plaintiffs’ land and for a mandatory injunction ordering the defendant to remove certain…

<p>Negligence, Employer’s liability, Of one controlling real estate, Matter of conjecture, Injury from slipping on object whose presence is unexplained.</p> <p>Where a scrubwoman employed in a hotel was injured by falling when descending a properly lighted flight of stairs in the hotel building by reason of stepping on some “sort of slippery refuse . . . like grease,” her employer is not liable for her injury, if there is nothing to show how or when the object on.which the woman slipped came upon the stairs.</p> <p>Collection of cases of personal injuries from falls caused by slipping on objects whose presence was unexplained.</p>

<p> Frauds, Statute of. </p> <p>Where, in consideration of the forbearance of the holder of a note made by a certain corporation to bring a suit against the corporation and an individual person to reach and apply in satisfaction of the holder’s claim property of the corporation in the hands of the individual person, that person promises to liquidate the note in monthly payments of $100 each, this is a promise to answer for the debt of another within the meaning of It. L. c. 74, § 1, cl. 2.</p> <p>In'an action on a promise to pay a note of a certain corporation held by the plaintiff, in which the defendant pleaded and relied on the statute of frauds, a letter signed by the defendant, referring to a previous correspondence in which the promise was stated, contained the following: “In regard to your statement that I intended to liquidate the old claim of [the plaintiff] against the Imperial Company, — this is correct; but please note that I have changed my mind. ...” Another letter signed by the defendant, referring to the same correspondence, contained the following: “My verbal promises to Mr. P were definitely qualified and exactly as your letter said: ‘That the company’s condition would soon enable me to pay the claim.’ ” Held, that there was a sufficient memorandum to satisfy the requirement of the statute of frauds, the unambiguous recognition of the alleged contract being none the less sufficient because the letter of recognition contained an express repudiation of the contract.</p>

<p>Tax, On legacies and successions. Power.</p> <p>A widow conveyed by deed to her brother certain personal property upon the following trusts: “To pay over the net income therefrom to my daughter, O B V, during her life and in case she has issue surviving her during the continuance of this trust, to pay‘the net income in equal shares to them. And to pay over the principal, in whole or in part, as a fund to be devoted to such national or philanthropic purpose in Norway associated, with the name of my late husband, O B, as my said daughter during her lifetime or by will may direct .... 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.” The donor’s daughter died without issue and without having exercised either by deed or by will the power of appointment as to the whole or any part of the trust fund. The Attorney General at the relation of the Treasurer and Receiver General brought an information in equity under St. 1909, c. 266, against the brother of the donor as trustee under the deed to recover a legacy and succession tax under St. 1909, c. 527, § 8, on the passing of the property into the control of the defendant by virtue of the failure of the daughter of the donor to exercise the power of appointment given to her by the deed of trust. Held, that no legacy or succession tax was due, because no one had become entitled to the possession or enjoyment of the property by reason of the daughter’s failure to exercise the power given to her, although thereby a new power of appointment had come into existence.</p>

<p>Scire facias against the indorser of a bill in equity for the costs awarded in the suit instituted by such bill against the present plaintiffs by one Florence J. Grant. Writ of scire facias dated February 26, 1915.</p> <p>In the Superior Court the case was tried before Hitchcock, J. At the trial the plaintiffs introduced in evidence the bill in equity, which was filed on July 15, 1914, and in which Florence J. Grant was described as of Freeport, in the county of Cumberland and State of Maine, and these plaintiffs were described as of Boston, Massachusetts. On the back of the bill, in the defendant’s handwriting, was the following indorsement: “From the office of J. C. Johnston, 421 Tremont Building,” he being an attorney at law. The plaintiffs also showed that on November 30, 1914, a final decree was entered dismissing the bill with costs amounting to $63.61. The plaintiffs also introduced in evidence the execution for the costs issued against Florence J. Grant in behalf of the plaintiffs in this action, the execution being dated December 21, 1914, and returned to court on February 24, 1915, by one Gast, who was admitted to be a duly qualified constable of Boston, and who indorsed on the execution the following return: “Suffolk, ss. Boston, February 19, 1915. By virtue of this execution, on the 31st day of December, 1914, and again on the 1st day of January, 1915, and again on the 15th day of February, 1915, I made diligent search for the goods, chattels, or lands of the within named Florence J. Grant, the judgment debtor, but could find none within my precinct; I therefore return this execution to court in no part satisfied.” No demand ever was made upon Florence J. Grant for the amount of the execution.</p> <p>There was evidence from which the jury could find that Florence J. Grant resided continuously in Boston from the date of the issuance of the execution until the time of her death in September, 1916; and that during all that time she was the owner of an equity in real estate in Freeport in the county of Cumberland and State of Maine. There was evidence that this was worth $500. There was no" other evidence upon-the question of her financial ability to pay the execution except the officer’s return in the suit of Grant against Bird et al. The plaintiffs offered in evidence a sealed envelope with a post office date stamped thereon, addressed to Florence J. Grant, 554 Columbus Avenue, Boston, alleged to contain a letter to her, bearing upon its face a statement to the effect that the letter was unclaimed and that the addressee could'not be found and that the letter was returned to the writer. There was no evidence offered as to who stamped on the envelope the statement that the addressee could not be found. The defendant excepted to the admission of the envelope in evidence. The plaintiff Hopwood was allowed to testify that he wrote and sent the letter and to the contents of the letter alleged to be contained in the envelope, although he admitted that he had made a copy thereof and did not know where the copy was, but was permitted to testify that the letter inside the envelope was a demand upon Mrs. Grant for the payment of the execution. The defendant excepted to the admission of this testimony. A witness called by the plaintiffs testified that he had called at the home of Florence J. Grant at 554 Columbus Avenue and had seen one Mrs. Saulnier. Against the objection of the defendant he was allowed to testify that Mrs. Saulnier told him that Mrs. Grant was not there and that she did not know where she was. This was offered to contradict Mrs. Saulnier’s testimony that at that time Mrs. Grant boarded at her house, also to show the efforts made by the plaintiffs to find Mrs. Grant. The defendant excepted to the admission of this testimony.</p> <p>The defendant asked the judge to instruct the jury as follows:</p> <p>“1. That, unless it appears that the plaintiff in the suit in equity brought by Florence J. Grant against Mary L. Bird and John H. Hopwood was not an inhabitant of the Commonwealth, the defendant is entitled to” [prevail/]</p> <p>“ 2. That, unless it appears that the plaintiff in the suit in equity brought by Florence J. Grant against Mary L. Bird and John H. Hopwood was not an inhabitant of the Commonwealth at the time of the entry of said suit, the defendant is entitled to” [prevail/]</p> <p>“3. That the burden is upon the plaintiffs in this action to establish by a fair preponderance of the evidence that the plaintiff in- the suit in equity of Grant against Bird and Hopwood was not an inhabitant of this Commonwealth.</p> <p>“4c. That the burden is upon the plaintiffs in this action to establish by a fair preponderance of the evidence that the plaintiff in the suit in equity of Grant against Bird and Hopwood was not an inhabitant of this Commonwealth at the time of the entry of said suit.</p> <p>“5. That the burden is upon the plaintiffs in this action to establish by a fair preponderance of the evidence that Florence J. Grant, the plaintiff in the suit in equity of Grant against Bird and Hopwood, avoided the payment of the judgment therein or was unable to pay said judgment.</p> <p>“ 6. An officer’s return that he has made diligent search for the property of the plaintiff upon which to levy the amount of said judgment is no evidence that the plaintiff in said suit avoided the payment of the judgment against her.</p> <p>“7. An officer’s return that he has made diligent search for the property of the plaintiff upon which to levy the amount of said judgment is no evidence that the plaintiff in said suit avoided the payment of the judgment against her where the plaintiff was residing in the Commonwealth from before the time of the commencement of said suit until the time of her death in September, 1916.</p> <p>“8. An officer’s return that he has made diligent search for the property of the plaintiff upon which to levy the amount of said judgment is no evidence that the plaintiff in said suit avoided the payment of the judgment against her where the plaintiff was residing in the Commonwealth from before the time of the commencement of said suit until the time of her death in September, 1916, when the fact of her residence was known to the plaintiffs in this action.</p> <p>“9. An officer’s return that he has made diligent search for the property of the plaintiff upon which to levy the amount of said judgment is no evidence of the inability of the plaintiff in the suit in equity of Grant against Bird and Hopwood to pay the amount of the judgment awarded against her where the plaintiff resided in the Commonwealth from before the time of the commencement of said suit until the time of her death in September, 1916.</p> <p>“ 10. If the jury finds that Mrs. Florence J. Grant, the plaintiff in the original suit, was an inhabitant of the Commonwealth at the time of the entry of the bill in equity in the case of Grant against Bird and Hopwood, and continued to reside therein until the time of her death, September 8,1916, the plaintiffs must show that they used reasonable diligence to collect the amount of their judgment for costs from her before they are entitled to recover against the defendant in this case.</p> <p>“11. If the jury finds that Mrs. Florence J. Grant, the plaintiff in the original suit, was an inhabitant of the Commonwealth at the time of the entry of the bill in equity in the case of Grant against Bird and Hopwood, and continued to reside therein until the time of her death, September 8,1916, the plaintiffs must show that they used reasonable diligence to collect the amount of their judgment for costs from her before they are entitled to recover against the defendant in this case, and the officer’s return upon the execution in the case of Grant against Bird et al. is not enough to establish the fact of such reasonable diligence.</p> <p>“ 12. If the jury finds that Mrs. Florence J. Grant, the plaintiff in the original suit, was an inhabitant of the Commonwealth at the time of the judgment against her for costs in the suit in equity of Grant against Bird et al. and continued to reside therein until the time of her death, September 8,1916, the plaintiffs must show that they used reasonable diligence to collect the amount of their judgment for costs from her before they are entitled to recover against the defendant in this case.</p> <p>“ 13. If the jury finds that Mrs. Florence J. Grant, the plaintiff in the original suit, was an inhabitant of the Commonwealth at the time of the judgment against her for costs in the suit in equity of Grant against Bird et al. and continued to reside therein until the time of her death, September 8,1916, the plaintiffs must show that they used reasonable diligence to collect the amount of their judgment for costs from her before they are entitled to recover against the, defendant in this case, and the officer’s return upon the execution in the case of Grant against Bird et al. is not enough to establish the fact of such reasonable diligence.</p> <p>"14. Upon all the evidence the plaintiffs are not entitled to recover.”</p> <p>The presiding judge refused all these requests for instructions and instructed the jury, among other things, that the officer’s return upon the execution issued in the suit of Grant against Bird et al. was some evidence that the plaintiff in that suit was unable to pay the amount of the execution.</p> <p>The presiding judge submitted to the jury three questions, which with the answers of the jury were as follows:</p> <p>" 1. Was Florence J. Grant an inhabitant of the Commonwealth at the time of the filing of the bill in equity in the suit of Grant against Bird et al ? ” The jury answered, “Yes.”</p> <p>. “2. Was Florence J. Grant an inhabitant of the Commonwealth</p> <p>during the life of the execution issued in said suit?” The jury answered, “Yes.”</p> <p>“3. Was Florence J. Grant unable to pay the amount of said execution?” The jury answered, “Yes.”</p> <p>Thereupon the judge ruled that the defendant was bound by the record in the suit of Grant against Bird and could not contradict that record and instructed the jury to find a verdict for the plaintiffs in the sum of $71.24. The defendant alleged exceptions.</p> <p>R. L. c. 173, § 39, is as follows: “Original writs, writs of audita querela, writs of scire facias by private persons on judgment or recognizance, writs of error in civil cases, writs’ of and petitions for review, petitions for partition in the Superior Court, petitions to establish liens on buildings and land, petitions for certiorari or mandamus and bills in equity, in which the plaintiff is not an inhabitant of the Commonwealth, 'shall, before the entry thereof, be indorsed by a responsible person who is such inhabitant; but if one of the plaintiffs is such an inhabitant, the process need not be so indorsed. Every indorser, in case of avoidance or inability of the plaintiff, shall be liable to pay all costs which may be awarded against the plaintiff if an action therefor is com.menced within one year after the original judgment.”</p> <p>The case was submitted on briefs.</p>

<p>Insurance, Against liability: notice. Equity Jurisdiction, To reach and apply casualty insurance to satisfaction of judgment for bodily injury.</p> <p>In a suit in equity under St. 1914, c. 464, by one who had recovered judgment against certain bridge builders for bodily injuries, to reach casualty insurance in a certain insurance company and apply it to the satisfaction of such judgment, the insurance policy on which the claim was brought contained the following condition: “The assured upon the occurrence of an accident shall give immediate notice thereof to the Company, or to its authorized Agent, with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. ...” It appeared that the plaintiff was an inspector in the employ of the metropolitan park commission and that on a certain day his leg was scalded by a jet of steam or boiling water coming from an engine operated by workmen of the bridge builders who were constructing a bridge for that commission, that immediately upon receiving the injury the plaintiff walked away from the job unaided, had his leg bandaged at the office of the commission and went home, that the next day he returned to work and remained on the job for eight days, when his leg became worse and he went home, that he remained at home for twelve days, that during this time he called in attorneys, and that they on the last of the twelve days mailed a letter to the bridge builders containing a full statement of the accident and of his claim and that two days later the bridge, builders sent to the insurance company a letter enclosing the letter of the attorneys, which was received in due course, that the plaintiff did not notify the bridge builders that he was injured nor make any claim for his injury until the letter of his attorneys was sent to them, but that the foreman of the bridge builders learned of the injury at some time during the day on, which it happened and notified the bridge builders of it within a week, who assumed from the fact that the plaintiff had gone back to his work and had made no complaint that his injury was a trifling one. Held, that there could be no recovery on the policy because the condition in regard to notice was not complied with, the policy having required immediate notice of the occurrence of an accident, regardless of any claim for damages or the amount of damages sustained, and such requirement being a reasonable one.</p> <p>In the case above described it was pointed out that the fact, that the person injured had a reasonable and bona fide doubt as to the existence of any injury or any liability, could not deprive the insurer of its contractual right under the policy to have immediate notice of the occurrence of an accident regardless of any claim that might be founded on it. '</p>

<p>Two actions of tort against a physician, the first by a married woman for alleged negligent professional treatment, and the second by her husband for consequential damages. Writs dated March 12, 1915.</p> <p>The defendant moved for specifications, and the plaintiff filed specifications, which are described in the opinion.</p> <p>In the Superior Court the case was tried before Wait, J. The evidence is described in the opinion. The question which the judge allowed to be put to Dr. Jefferson, subject to the defendant’s exception, there is quoted. At the close of the evidence the judge refused to order verdicts for the defendant, and thereupon the defendant in each case asked the judge to instruct the jury as follows:</p> <p>“There is no evidence to support the first of the two specifications.”</p> <p>“There is no evidence to support the second of the two specifications.”</p> <p>The judge refused to give either of these instructions and submitted the cases to the jury.</p> <p>The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $4,500 and in the second case in the sum of $500. The defendant alleged exceptions.</p>

<p>Contract against the C. G. Howes Company, a corporation, on three promissory notes made by that company and signed by its treasurer, due, respectively, $200 on March 15, 1916, $100 on April 15, 1916, and $200 on May 14, 1916. Writ dated May 18, 1916.</p> <p>The case was referred to an auditor, who made a report containing the findings that are stated in the opinion.</p> <p>The case was heard upon the auditor’s report by Aiken, C. J., without a jury. The defendant asked the Chief Justice to make the two rulings which are quoted in the opinion. The Chief Justice refused to make either of these rulings and found for the plaintiff in the sum of $529.33. The defendant alleged exceptions.</p>

Bill in equity, filed in the Superior Court on January 19,1917, against the members of a firm of stockbrokers as the principal defendants and certain other defendants holding funds sought to be reached and applied as equitable assets of the principal defendants, under- R. L. c. 99, §§ 4, 6, to recover money and securities alleged to have been paid and delivered to the principal defendants as margins on wageAng contracts.

<p>Two actions of contract against the same defendant, each brought by a minor by his next friend to recover money paid by the plaintiff toward the purchase of a motorcycle under a contract of conditional sale avoided and repudiated by the plaintiff, who had delivered back the motorcycle to the defendant and demanded the money paid by him. Writs in the Municipal Court of the City of Boston dated respectively August 11 and August 25, 1916.</p> <p>In the ICnudson case the defendant’s answer contained a claim in recoupment for use and misuse of the motorcycle by the plaintiff.</p> <p>In the Municipal Court the cases were tried before different judges. In the ICnudson case the judge found that the plaintiff was a minor, that when he made the contract he said that he was of age, that the contract was not beneficial to him and that the motorcycle was not a necessity for him. The judge ruled that the contract was one of conditional sale, and refused to give the rulings requested by the defendant. He found for the plaintiff in the sum of $121.70, and at the request of the defendant reported the case to the Appellate Division. The defendant filed in the Appellate Division a motion to recommit the report to the trial judge for amendment by adding to it a statement of certain things not contained in it. The Appellate Division made an order that the report be dismissed, and the defendant appealed.</p> <p>The judge before whom the Raymond case was tried found that the plaintiff was a minor at the time that the contract of conditional sale was executed and that the motorcycle was not a necessity. He found for the plaintiff in the sum of $78, and at the request of the defendant reported the case to the Appellate Division. The Appellate Division made an order that the report be dismissed, and the defendant appealed.</p>

<p>Mortgage, Of real estate. Equity Jurisdiction, To compel accounting for surplus after foreclosure sale.</p> <p>The holder of a third mortgage on real estate may maintain a suit in equity against the holder of a second mortgage on the same property, who has foreclosed his mortgage and has become the purchaser of the property at the foreclosure sale, but who has refused to complete the foreclosure by making a deed to himself under a power contained in the second mortgage, to compel the defendant to pay to the plaintiff the surplus of the purchase money after the satisfaction of the debt to the defendant secured by the second mortgage, because equity will treat as done that which ought to have been done, and the defendant will not be allowed to take advantage of his own failure to perform his duty toward the plaintiff by completing the foreclosure of his second mortgage.</p>

<p>Cross bill for divorce on the ground of desertion, originally, filed in answer to a libel filed by the present libellee, which after-wards was dismissed for want of prosecution, as stated in the opinion.</p> <p>In the Superior Court the .case was heard by Jenney, J., who found the facts which are stated in the opinion and ruled, subject to the exception of the libellant, that she was not entitled to maintain her libel. He made an order dismissing the libel and reported the case for determination by this court, such order or decree to be entered as might be deemed proper.</p>

<p>Contract, with a declaration, as amended after the decision of the case reported in 224 Mass. 62, in three counts, which áre described in the opinion. Writ dated November 12, 1907.</p> <p>The case was referred to an auditor, who filed a report on November 6, 1912, and a supplemental report on April 21, 1913.</p> <p>The previous trial in the Superior Court is described in the opinion. After the decision of this court, reported in 224 Mass. 62, there was a second trial before Fessenden, J., upon the declaration as amended. The evidence at and the course of this trial are described in the opinion. The presiding judge, after the answers of the jury to the special questions described in the opinion, ordered a verdict for the defendants and reported the case to this court for -determination, it being agreed that, if the ruling ordering a verdict for the defendants was right, judgment should be entered for the defendants, but, if this court should be of the opinion that that ruling was wrong, judgment should be entered for the plaintiff in such sum as this court might order.</p>

<p>Bill in equity, filed in its amended form in the Superior Court on July 30, 1917, under R. L. c. 159, § 3, cl. 7, as amended by St. 1902, c. 544, § 23, and St. 1910, c. 531, § 2, by a corporation, alleging that by a contract dated March 9, 1911, the defendant Stryker agreed to render certain services to the plaintiff as superintendent and to do certain things and refrain from doing certain other things, that the defendant Stryker abandoned the contract and left the plaintiff’s employ and “that the damage resulting to it from said breach of contract by the defendant Stryker exceeds in amount the verdict and judgment hereinafter referred to and the value of the five shares of stock sought to be reached hereby.” ■</p> <p>The bill further alleged that the defendant Stryker brought actions of libel against the plaintiff and the defendant Stone based upon articles published in certain newspapers, and at the trial of these actions one issue between the parties was the question whether the contract had been broken by the defendant Stryker or had been abandoned by mutual consent of the parties hereto, that this issue was tried fully and was presented to the jury by special questions, to which the jury answered that the ■contract was broken by the defendant Stryker. Upon a motion for a new trial the general verdicts which had been entered upon the questions answered by the jury were set aside as to damages only, and a new trial ,was had which resulted in a verdict for the defendant Stryker in the sum of $1,250, [see 227 Mass. 253,3 and judgments thereon were rendered in favor of the defendant Stryker as against the plaintiff and the defendant Stone for the amounts of the verdicts and costs; that thereby all questions as to the breaches of the contract by Stryker became res judicata by the judgments and the proceedings incidental thereto; that the defendant Stryker is financially irresponsible and, except five shares of the capital stock of the plaintiff afterwards mentioned, has no assets out of which any judgment in damages for such breach of contract can be satisfied; that he has the option to enforce said judgments against either the plaintiff or the defendant Stone and threatens to take out execution and levy against the goods and estate of the defendant Stone; that if the defendant Stryker enforces said judgments against the plaintiff, the plaintiff will be unable to set •off the amount of said judgments against the amount which the defendant Stryker owes this plaintiff for breaches of the contract but will be obliged to pay the amount of the judgments and then will be unable to collect its claim for breach of contract against the defendant Stryker; and that if the defendant Stryker enforces his said judgments against the defendant Stone, the plaintiff will be unable to enforce its claim for breach of contract against the defendant Stryker.</p> <p>The bill further alleged that, as between the plaintiff and the defendant Stone, the latter personally published the libels which constituted the cause of the actions of tort, the plaintiff being liable because Stone purported to act in said publications as an officer and agent of the plaintiff but in so acting did so without right and without authority and that the defendant Stone should in justice and equity personally pay the amount of said judgments; that the plaintiff therefore is entitled to the benefit of a right of subrogation, as to the judgment of the defendant Stryker against the defendant Stone toward satisfaction pro tanto of the claim of the plaintiff against the defendant Stryker.</p> <p>The bill further alleged that the defendant Stryker claims to be the owner of five shares of the capital stock of the plaintiff by virtue of a certificate standing in the name of Nathan S. Brinton and bearing on the back thereof an indorsement purporting to constitute a transfer of said stock from said Brinton to said Stryker; that said certificate is in the possession of the defendant Stryker, it having been delivered to him by the defendant Stone, the then owner thereof; that the defendant Stryker has demanded of the defendant Stone, as treasurer of the plaintiff, that upon the surrender of said certificate a new certificate for five shares be issued to and in the name of said Stryker; that the by-laws of the plaintiff contain the following provision:</p> <p>“Appraisal and sale of shares of stock. If a stockholder of this corporation desires to dispose of any of his shares, or if the executor or administrator of a deceased stockholder, or the grantee or assignee of any shares sold on execution, desires to dispose of his shares, he shall first give the Directors of the Corporation the option to buy said shares for the use of the Corporation, at their book valué, which book value it shall be the duty of the Directors to give upon request. And if said Directors shall choose to take such shares for the use of the corporation, such stockholder, executor, administrator, grantee or assignee shall, upon the payment or tender to them of such book value thereof, and the dividends due thereon, transfer and assign such share or shares to said Corporation, provided, however, the said Directors shall not be obliged to take such shares at the book value aforesaid unless they think it for the interest of the Corporation, and if they shall not within ninety days after said shares are offered to them, take the shares and pay such stockholder, executor, administrator, grantee or assignee the book value thereof, such stockholder, executor, administrator, grantee or assignee shall be at liberty to dispose of the same shares to any person whatsoever.”</p> <p>That the defendant Stryker has brought a bill in equity against the plaintiff, the defendant Stone and others as officers of the corporation praying that the defendant Stone be ordered to offer to the directors of the plaintiff the certificate of stock, giving them the option to buy it for the use of the plaintiff at the book value of the shares which it represents; that, if the directors within ninety days shall not vote to take such shares for the use of the corporation, the defendant Stone be ordered to transfer the shares on the books of the corporation to the defendant Stryker* and issue a new certificate to him; that if within ninety days the directors shall vote to take such shares of stock for the use of the plaintiff the book value of such shares shall be ascertained by the Supreme Judicial Court and the plaintiff ordered to pay such amount to the defendant Stryker; that the pleadings upon this bill in equity have been completed and the suit has been referred to a master and hearings thereon have been had; that the master has submitted to counsel a draft report containing findings in favor of the claims of the defendant Stryker, but has not yet filed his report thereon and that the bill is now pending in the Supreme Judicial Court; that the value of said shares exceeds $1,000.</p> <p>The bill also alleged that the defendant Stryker has also brought an action in the Superior Court against this plaintiff for ■ breach of the contract, which action is now pending and is awaiting trial.</p> <p>The prayers of the bill were as follows:</p> <p>1. That the defendant Stryker might be restrained from collecting any sums on account of the judgments in his actions of tort for libel against the plaintiff and the defendant Stone pending the determination of this suit.</p> <p>2. That the amount due the plaintiff from the defendant Stryker for breaches of the contract by the defendant- Stryker be ascertained and determined.</p> <p>3. That the judgments in the actions of tort for libel brought by the defendant Stryker against the plaintiff and the defendant Stone may be sét off and applied pro tanto on account of the damages due from the defendant Stryker to the plaintiff.</p> <p>4. That the defendant Stone be ordered to pay to the plaintiff the amount of the judgment secured by the defendant Stryker against the defendant Stone in satisfaction pro tanto of the claim of the plaintiff against the defendant Stryker.</p> <p>5. That the interests of the defendant Stryker in said five shares of the capital stock of the plaintiff or in any proceeds of said shares which may be offered to the directors of the plaintiff be determined and that said interests and the shares representing the same be seized and sold in such manner as the court shall order and the proceeds of said shares either upon sale ordered by the court or upon purchase by the plaintiff under said by-law be applied in satisfaction of the damages due from the defendant Stryker to the plaintiff.</p> <p>6. That the defendant be enjoined perpetually -as well as during the progress of this case from proceeding further with the actions against the plaintiff for breach of the contract.</p> <p>7. That pending the trial of this case the defendant Stryker be enjoined from parting with or in any way disposing of his interest in the five shares of stock of the plaintiff corporation referred to in the bill.</p> <p>8. For such other and further relief as to the court shall seem meet and proper.</p> <p>The defendant Stryker demurred to the bill, as amended, for want of equity and for the following assigned reasons:</p> <p>“This defendant further demurs to so much of the plaintiff’s bill of complaint as relates to the judgments alleged to have been entered in actions of tort for libel in favor of this defendant against the plaintiff and the defendant Stone on June 25, 1917, because</p> <p>“1. The plaintiff has in this regard a complete and adequate remedy at law.</p> <p>“2. The. bill shows the plaintiff and the defendant Stone to be joint tortfeasors in pari delicto, between whom there can be no right of contribution or subrogation which this court has jurisdiction to reach and apply.</p> <p>“3. The bill shows no such relation between the plaintiff and the defendant Stone as to make it inequitable for this defendant to satisfy from the defendant Stone his judgment in the action of tort.</p> <p>“4. The bill discloses an attempt on the part of the plaintiff to benefit by its own wrong, which equity will not aid.</p> <p>“5. It is not equitable to allow the plaintiff to create for itself by its own malicious tort security for a claim in contract against the victim of that tort which claim existed prior to such malicious tort, nor to allow it to benefit by the consequences of the malicious act of one who committed such tort jointly with the plaintiff and for its benefit.”</p> <p>The demurrer was argued before J. F. Brown, J., who made an interlocutory decree sustaining the demurrer. The plaintiff appealed, and the judge, being of opinion that the questions raised by the demurrer were fundamental and ought to be determined before the parties went to a hearing upon the merits, reported the case and all questions raised by the record, including the appeal from the interlocutory decree sustaining the demurrer, for determination by this court.</p>

<p>Contract, Performance and breach, Building contracts. Practice, Civil, Exceptions. Proximate Cause. Damages, For breach of contract.</p> <p>In an action on a contract in writing, by which the defendant agreed to construct a building for the plaintiff, for damages caused by the defendant’s failure to ' make the building waterproof, whereby the plaintiff’s goods stored there became damaged, it appeared that the contract provided that the work was to be done under the direction of the architect and “that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract.” It could have been found that the architect permitted a variation from the specifications in the work of waterproofing to which the plaintiff did not assent. A finding was warranted that no final certificate ever was given or intended to be given by the architect as arbitrator under the contract, and an auditor to whom the case had been referred found that “at the time the certificate of final payment was given the defendant had not performed the work” or furnished the “materials required by the specifications; that the architect could easily have ascertained this, and was negligent in not doing so.” It was conceded that the basement of the building had not been made waterproof as called for by the contract. The presiding judge refused to make a ruling requested by the defendant, that “The original contract was conclusively settled by the making and acceptance of the final certificate and payment,” and also refused to instruct the jury “that the plaintiff could not recover on the principal contract because of the issuance of the architect’s final certificate and payment thereunder.” Held, that the refusal of the judge to make the rulings requested was right.</p> <p>In the case above described it also was held that the judge properly refused to rule that the plaintiff could not recover under a certain guaranty clause in the contract, because the request for the ruling was inappropriate, the plaintiff having made no claim under that clause.</p> <p>In the case above described the plaintiff sought to recover for damage to “his dry goods and other merchandise” caused by the defendant’s failure “to put up a building that shall be waterproof.” The auditor found “that the defendant knew that said basement was to be used for the storage of dry goods and merchandise,” and further found “that the plaintiff’s goods and merchandise in the basement became damp and mouldy due to the absence of waterproofing,” and there also was oral evidence warranting the jury in making this finding. The presiding judge refused to make a ruling requested by the defendant that, “Even though the defendant knew that the store was to be used for the storage of goods, the plaintiff [¡defendant] would not be liable for damage thereto because the defendant’s act in omitting the waterproofing would not be the proximate cause of such damage.” Held, that the judge was right in refusing to make this ruling, because the jury could find that the plaintiff’s damages were such as reasonably might be supposed to have been within the contemplation of the parties if at the time of making the contract they had taken thought of the consequences likely to ensue if the waterproofing as specified were omitted.</p>

<p>Equitable Restrictions. Equity Pleading and, Practice, Report by judge. Equity Jurisdiction, Mandatory injunction.</p> <p>In a suit in equity, by the owner of one of the lots shown on a plan recorded with the deeds given by the common grantor of all the lots shown on the plan, to compel the owner of the adjoining lot to remove a house which he had built in violation of the restrictions contained in his deed, where the trial judge reported the case for determination by this court, a statement in the report, that the trial judge ruled that the plaintiff “ as the owner of ■one of the lots is a person for whose benefit the restrictions were imposed, and is entitled to a mandatory injunction,” necessarily implies a finding by the judge that the original owner imposed the same restrictions on each of the lots on a street shown on the plan as a part of the general scheme of improvement and for the benefit of the purchasers of the several lots.</p> <p>"Where a grantor conveyed a tract of land, cut up by him into thirteen lots according to a plan recorded with the deed in the registry of deeds, and imposed restrictions “that no buildings other than private residences intended for single families only and the necessary outbuildings shall be erected or-placed thereon and no building shall be erected nearer the street in any case than 20 feet,” except certain projections, and not “ nearer than five feet to any boundary line,” and where the general grantor intended to impose on each grantee a liability not only to the grantor himself for the protection of his other adjoining land, but also that the benefit of the restrictions should enure to each purchaser of a lot shown on the plan with the equitable right to enforce them against the other grantees, a purchaser of such a lot can maintain a suit in equity for a mandatory injunction against the owner of .the adjoining lot, who was one of the original grantees, ordering him to remove a two-family house which he has erected on his lot nearer than five feet to the boundary line.</p>

<p>Indictment, found and returned in the Superior Court for the county of Suffolk in January, 1917, under St. 1915, c. 187, §§ 2,11, charging the defendant with unlawfully prescribing, when not obviously needed for therapeutic purposes, certain narcotic drugs, including morphine, cocaine and heroin, to fifteen different persons named in the indictment and alleged to be habitual users of those drugs and known to the defendant to be such.</p> <p>The defendant was tried before Morton, J. The evidence is described in the opinion. The defendant asked the judge to make the ruling which is quoted in the opinion. The judge refused to make this ruling, and submitted the case to the jury with other instructions, which concluded as follows: “The question of obvious necessity to prescribe the drug and of the purpose for which it is prescribed is, as has been testified to, largely a matter of common sense. If you are satisfied beyond a reasonable doubt that the drug was not obviously needed and that the purpose of the defendant Noble in prescribing it was not in good faith to cure, but for the purpose of evading the law, then he is guilty.”</p> <p>The jury returned a verdict of guilty on all the counts of the indictment, and the judge at the request of the defendant reported the case for determination by this court. The report stated that it was not contended by the defendant that there was any error in the judge’s charge except in so far as it was inconsistent with the ruling requested, and that the refusal of the judge to make that ruling raised the only question submitted for determination by this court.</p> <p>■ St. 1915, c. 187, § 2, and the beginning of § 3 are as follows:</p> <p>“Section 2". It shall be unlawful for any practitioner of veterinary medicine or surgery to prescribe any of the drugs mentioned in section one of this act for the use of a human being, and it shall be unlawful for any physician or dentist to prescribe, sell, give away or deliver any coca leaves or any cocaine or any alpha or beta eucaine or any compound, derivative or synthetic substitute for them, or opium, morphine, heroin, codeine or any preparation thereof, or any salt, compound or derivative of said substances to any person known to such physician or dentist to be an habitual user of those drugs, except when the drug is obviously needed for therapeutic purposes.</p> <p>“ Section 3. The provisions of this act shall not be construed to prevent any lawfully authorized practitioner of medicine, dentistry, or veterinary medicine from prescribing, administering, dispensing or distributing any of the drugs mentioned in this act that may be indicated for any patient under his care: provided, that such prescribing, administering, dispensing, or distributing is not for the purpose of evading the provisions of this act; ...”</p>

<p>Release. Physicians and Surgeons. Contract, Validity. Evidence, Presumptions and burden of proof. Practice, Civil, Ordering verdict.</p> <p>At the trial of an action by an employee against his employer, a corporation, for personal injuries, the plaintiff admitted that, nearly three weeks after he was injured, he received money from the defendant and signed an instrument purporting to release and discharge it from all claims relating thereto and that he understood the contents of the instrument. There was evidence tending to show that, immediately after his injury, the plaintiff received first aid treatment in the accident room of the defendant’s works from a physician in its employ, that shortly afterwards the plaintiff was removed to a hospital, that about a week later the defendant’s physician called there and on that and on two subsequent occasions talked with the plaintiff, who knew that he was the defendant’s physician, on the subject of a settlement with the defendant, making to the plaintiff, as an inducement for him to consummate a settlement, certain statements as to his opinion of the early date and probable completeness of the plaintiff’s recovery, and that the plaintiff at his suggestion wrote to him a letter regarding settlement. There was no evidence that the defendant’s physician ever gave the plaintiff any treatment after the first aid treatment, or that bis statements of his opinion as to the plaintiff’s recovery were made fraudulently or in bad faith or that the plaintiff’s condition when he signed the release and received money therefor was such as to make him incompetent to act. A verdict was ordered for the defendant. Held, that the verdict was ordered rightly.</p> <p>In the action described above, it was held that the evidence did not warrant a finding that the relation of physician and patient, or any relation of trust and confidence, existed between the defendant’s physician and the plaintiff.</p> <p>In the same case it was pointed owl that there was nothing to indicate that the statements of the physician were other than statements of his honest opinion given in accordance with his best professional judgment based on existing symptoms.</p>

<p>Dangerous Substance. Soap. Negligence, Of merchant. Evidence, Res ipso loquitur.</p> <p>In the absence of negligence, a retail dealer in selling a commodity not inherently harmful or dangerous is not liable in tort for personal injury resulting from its condition.</p> <p>Testimony of a driver of a team for a rendering plant, who in behalf of his employer collected soap grease, giving in payment therefor soap which it did not manufacture but acquired from others in the usual course of its business, that sometimes a nail was found in bars of the soap and that he examined them before delivering them to purchasers, is not evidence tending to show that the presence of a needle in a bar of soap given by the driver to a customer was due to negligence of the driver or of his employer.</p> <p>The mere fact, that a member of the family of the customer to whom the bar of soap was delivered by the driver, as above described, was injured by a needle embedded in the soap, is not evidence of negligence of the driver or of his employer.</p>

<p>Contract, with a declaration in two counts, the first count being for breach of an agreement in writing for the employment of the plaintiff by the defendant for a period of one year as a salesman upon a commission, and the second count (made immaterial by the finding of the trial judge) being upon an account annexed for $167.50, alleged to be due to the plaintiff as a commission for the sale of a specified machine. Writ in the Municipal Court of the City of Boston dated November 16, 1916.</p> <p>The evidence at the trial in the Municipal Court is described in the opinion. At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. That the contract is one for personal services.</p> <p>“2. That F. J. Shetter had no authority as agent of the defendant to employ or discharge the plaintiff.</p> <p>“ 3. That the defendant has not broken its contract with the plaintiff.</p> <p>“4. That' there is no evidence on which the plaintiff can recover under count 1.</p> <p>“5. That there is no evidence on which the plaintiff can recover in count 2.</p> <p>“6. That on all the evidence the plaintiff is not entitled to recover.”</p> <p>The trial judge refused to give any of these rulings.</p> <p>• The judge found as follows:</p> <p>“It would seem that there was sufficient evidence to justify a finding that the agent Shetter did have authority in this particular case not only to employ the plaintiff, but also to discharge him, but if there was not sufficient evidence to justify such a finding, there was ample and sufficient evidence showing the acts of" the agent Shetter, both in employing and discharging the plaintiff were ratified and confirmed by the defendant. I am unable to make any of the findings of facts as requested by the defendant.</p> <p>“I make my finding on the first count in the declaration. I do not pass on the second count in the declaration, as the damages suffered by the plaintiff in the first count exceed the jurisdiction of this court.</p> <p>“I find as a fact that the plaintiff did give his personal services and attention under the contract declared on.”</p> <p>The judge found for the plaintiff in the sum of $2,000 and reported the case to the Appellate Division. The Appellate Division dismissed the report; and the defendant appealed.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board refusing to award compensation to Mary A. Murphy, the dependent widow of John T. Murphy, who died on March 2, 1913, when in the employ of the O. A. Miller Treeing Machine Company, a corporation maintaining a , factory at Quincy called the Old Angier Mills, in which Murphy was employed.</p> <p>The decision appealed from concluded as follows: "The evidence leaves the matter of the cause of the death of the employee in doubt, removes apoplexy or other organic diseases as its probable cause, shows that the employee did not die of asphyxia and does not sustain the claim of the dependent that it arose out of and in the course of the employment by reason of poisoning from the chemicals which were used in the manufacture of moving picture film material. The board, therefore, finds that the weight of the evidence does not show that the employee received a personal injury arising out of and in the course of his employment.”</p> <p>The case was heard by Fessenden, J. The evidence reported is described in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the dependent widow of the employee appealed.</p>

<p>Tort for personal injuries received by the plaintiff while in the employ of the defendant and at work upon a planer in a carpenter shop which'was a part of its plant, the declaration containing three counts, it being alleged in the first count that the injury to the plaintiff was caused by negligence of the defendant in permitting a buzz planer upon which the plaintiff was set to work to become defective and dangerous and the floor about it to be unsafe and dangerous, in the second count that the injury was caused by negligence of a fellow servant of the plaintiff, and in the third count that the injury was caused by negligence of the defendant in setting the plaintiff at work upon a dangerous machine without sufficient instruction and warning. Writ dated August 9, 1915. The action was tried before Hitchcock, J.</p> <p>It appeared that the purposes for which the defendant was incorporated, as stated in its charter, were “for the purpose of founding a hospital or charitable asylum within the State of Massachusetts, for the care and relief of indigent or other sick or infirm persons, at which institution may be received also patients and patrons who are able to and do pay for the benefits there received, and which institution shall devote the funds and property acquired and received by it from time to time from all sources, exclusively to maintaining itself, improving its condition and facilities,- extending its benefits and usefulness, and facilitating and promoting its purposes, by such sanitary, dietetic, hygienic, and philanthropic reforms and efforts as are germane or auxiliary thereto; all of its said purposes being undenominational, unsectarian, philanthropic, humanitarian, charitable and benevolent, and in no manner directly or indirectly for private profit or dividend paying, to any one.”</p> <p>The defendant was not a subscriber under the provisions of the workmen’s compensation act. The material evidence is described in the opinion.</p> <p>At the close of the evidence the plaintiff asked the judge to rule as follows: “If the large part of the beds or rooms used for patients by the defendant corporation are intended to be let for adequate return the jury might find that the defendant was not a public charitable corporation.” The ruling was refused.</p> <p>The judge submitted special questions to the jury, which, with the jury’s answers, were as follows:</p> <p>“1. Was the defendant negligent in setting the plaintiff at work on a dangerous machine without giving him suitable warnings and instructions?” The jury answered, “Yes.”</p> <p>“2. Was there a guard furnished with the planer which the plaintiff was operating at the time of his injury, and attached thereto, so that the plaintiff could have used it if he so desired ? ” The jury answered, “No.”</p> <p>“3. Was the buzz planer upon which the plaintiff was working a dangerous machine to operate without a guard to prevent the hand of the plaintiff from coming in contact with the knives?” The jury answered, “Yes.”</p> <p>“4. Was the danger in operating a buzz planer without a guard an obvious danger, that could be seen by reasonable observation on the part of the plaintiff ?” The jury answered, “Yes.”</p> <p>“5. Did" the general manager, treasurer and director of the defendant corporation know that the buzz planer was being used without a guard, and did he intend or direct that it should be used by the plaintiff without a guard?” The jury answered, “Yes.” “6. Did Alexandian [the fellow servant of the plaintiff referred to in the second count of the declaration] have hold of the board which the plaintiff was planing, and was he negligent in reference thereto, so as to cause the injury to the plaintiff ? ” The jury answered, “Yes.”</p> <p>“7. What damage should be awarded to the plaintiff, if he is entitled to recover?” The jury answered, “$2,500.”</p> <p>The judge thereupon ordered a verdict for the defendant on the ground that it was a public charity and therefore “not liable for the negligence of its servants or agents in matters of this kind.” The plaintiff alleged exceptions.</p>

Contract, by a person carrying on business individually under the name Massachusetts Broken Stone Company, upon a contract in writing dated April 6,1904, which is printed below, whereby the plaintiff agreed to furnish a stone crushing plant and the defendant agreed “to furnish a suitable location for the crusher,” and where-under the plaintiff was to crush for the defendant stone guaranteed to be not less than eight thousand tons and to receive payment therefor on the…

<p>Tort or contract, by a corporation engaged in business as a real estate broker, against Charles H. Wheelock, another "real ■estate broker who had no office and was not a member of the real .estate exchange, and Henry S. Moody, a real estate dealer engaged in the business of buying and selling real estate, to recover the amount of a commission upon a sale of the house and land of one Mrs. Glazier, numbered 772 on Washington Street in Brook-line, which the plaintiff was prevented from collecting by the wrongful and fraudulent acts and deceits of the defendants, the declaration, besides two counts in tort, also containing a third count for $625 as money had and received by the defendants to the plaintiff’s use. Writ dated July 30, 1915.</p> <p>In the Superior Court the case was tried before White, J. The evidence is described in the opinion. At the close of the evidence the defendant Moody and the defendant Wheelock each filed a motion asking the judge to order a verdict in his favor. The judge denied these motions and submitted the case to the jury, who returned a verdict against both defendants in the sum of $1,000, of which by order of the judge the plaintiff remitted all in excess of $625. The defendants alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Contract, What constitutes, Construction, Performance and breach. Evidence, Matters of common knowledge.</p> <p>Where an alleged contract for the sale of goods was made, if at all, wholly by letters, telegrams and cablegrams, in which no ambiguous words or terms were employed, , and where the circumstances under which the correspondence took place are not in controversy, the question whether a contract was made is one of law for the court.</p> <p>In such a case, in order that there should be a contract, the writings taken together must be so plain in their meaning and effect as not to be open to any reasonable misunderstanding.</p> <p>An unwarranted mistake by one of the parties to a contract in writing as to the meaning of the contract is no excuse for a breach of the contract by him due to such unreasonable misunderstanding.</p> <p>Ordinarily the annexing of a condition to the acceptance of an offer is regarded as the rejection of the original offer and the making of a new counter offer, which will become a contract only upon acceptance in accordance with its terms.</p> <p>In interpreting a correspondence between a manufacturing corporation in this country through its agent in Norway and a firm of merchants in Sweden, which took place a few weeks after the outbreak of the great war, it was said that in general the court will take judicial notice of the disturbance of commercial relations between neutral countries dependent upon navigation in the zone affected by that war.</p> <p>In an action by a manufacturer of flour doing business in the United States and having an agent in Norway against the members of a firm of merchants in Sweden, for the breach of a contract to purchase from the plaintiff forty thousand sacks of flour alleged to have been made by a correspondence by letter, telegraph and cable which took place within a few weeks after the outbreak of the great war, it appeared that the defendants in Sweden telegraphed to the plaintiff’s agent in Norway on September 10, 1914, “Offer firm against reply here within Saturday September twelfth further forty thousand sacks Hex patent same price and terms. Shipment on call September October confirm by wire soonest possible.” The words “same price and terms” referred to a contract between the parties made a few days earlier, and there was no dispute that the price was $6.90 per two hundred and twenty pounds and that a payment of $276,000 in United States currency was to be deposited immediately by cablegram with certain bankers in New York, who were to “pay this amount to sellers against Through-Bills of Lading issued,” and that the credit with the New York bankers “ was not to be withdrawn and not to be cancelled.” The answer of the plaintiff’s agent was not sent until September 13 and was not received by the defendants until September 14. It was as follows: “We confirm sale additional forty thousand Rex hundred kilos cottons [to the defendants] six dollars and ninety cents free on board Boston cash New York. . . . Arrange immediately confirmed credit two hundred and seventy six thousand dollars [naming^ the New York bankers].” On September 14 the defendants telegraphed to the plaintiff’s agent, “ Confirm we bought further 40 thousand sacks Rex per Canton and further two thousand Sovereign same price and terms as previously Sovereign shipment September Scandinavian tonnage subject to depositing equivalent amount” of Swedish kronas with a certain bank in Sweden “until dollars available confirm by wire.” The plaintiff’s agent replied by telegram, “We confirm having wired [the plaintiff] yesterday that for the further forty thousand Rex bought by you per steamer Canton end October from Boston at price and terms as former lot equivalent amount in kronas will be deposited with [the Swedish bank] until dollars available for same." The terms last named were confirmed by letter, telegraph and cable. The defendants failed to make the required deposit in kronas in the Swedish bank and the plaintiff brought an action for . damages. Held, that the reply of the plaintiff’s agent to the defendants’ first telegram of September 10, did not make a contract because it was not sent until a day after the required time and was not received until the day after that; that the defendants’ second telegram of September 14 contained the original offer with the new condition of the deposit of kronas in the bank in Sweden until dollars were available for the deposit in New York, and that the offer thus modified was accepted by the plaintiff, making- a contract, which the defendants broke when they failed to make the required deposit in the bank in Sweden.</p> <p>Where one of the parties to an executory contract clearly breaks his agreement, rendering performance by the other party impracticable, the right of such other party to indemnity by an action for damages at once accrues, and he is not obliged to wait before bringing his action until the arrival of the time when, if there had been no breach, both parties would have performed their obligations</p>

<p>Two petitions, filed in the Probate Court for the county of-Suffolk on January 16, 1917, by one of the persons named as' executors and trustees in the will of John W. Wheelwright, late of Boston, to vacate decrees of that Probate Court made on' June 6, 1916, approving a compromise agreement under R. L. c. 148, §§ 15-18, as amended by St. 1903, c. 222, and ordering' that the will of John W. Wheelwright be allowed but to be exe- - outed according to the terms of such compromise agreement. '■ The Probate Court made decrees dismissing the petitions, and' the petitioner appealed. :</p> <p>The cases came on to be heard by Crosby, J., who at the re-' quest of the parties ordered that the eases be consolidated and reserved them for determination by this court.</p> <p>The will of Johii W. Wheelwright was dated June 5, 1899. The material portions of the will were as follows:</p> <p>“I give, bequeath and devise the eiitire estate, both real and personal which may belong to me at the time of my decease, to my son Arthur William Wheelwright, Arthur T. Lyman and William A. Copeland and the survivors or survivor of them, to have and to hold to them, their heirs, successors and assigns respectively, but in trust nevertheless for the uses and purposes following, to wit: To hold and manage the same, keeping the real estate in repair and insured against fire, and after paying all necessary charges and expenses of said management, including taxes, to pay the income of all said property quarterly, in three equal shares to my wife, Sarah Wheelwright, my son, Arthur W. Wheelwright, and my daughter, Laura, the wife of George H. Windeler; and in case of the decease of my said son or daughter, leaving issue, then to pay such issue the share thereof which the parent would have been entitled if alive; with the understanding, however, that this trust as to the daughter’s share, or third part of the property is to continue during her lifetime; but is to terminate as to the share of my wife Sarah, and son Arthur in twenty years after my decease, or sooner, as to the income payable to either or both of them, in case of their decease before the expiration of said twenty years; and in the event of the decease of them or either of them within twenty years the share of income herein given to the deceased shall go to her or his heirs at law until the expiration of said twenty years, when the principal sum is to be paid over to the heirs at law of such deceased as if it had to come to them under the laws of descent.</p> <p>“In case of the decease of my daughter Laura during my lifetime, leaving no issue, her share of the income and principal is to .go to my wife and son in equal parts, or to the survivor of them; but in case of her death at any time leaving issue, my will is that her share of the income and principal be held and retained by said trustees or their "successors, and the survivor of them, for ■the use and benefit of such issue until the youngest child shall have attained the age of twenty-one years, and then paid over to them in equal shares.</p> <p>“My will is that if either of the three above-named beneficiaries shall die in my lifetime without issue, the survivors or survivor of them shall take in equal parts the share of such deceased; and if either of them so dying shall leave issue, then that his or her share shall go to such issue by right of representation, upon their attaining respectively the age of twenty-one years, till which time it shall remain in the hands of said trustees or their successors.”</p> <p>"At the expiration of twenty years from my decease, the trustees abovenamed, or their successors or the survivors of them are to convey to my wife, or her then heirs at law, or to such persons as she may by will appoint, one-third of said trust property, and to my son, Arthur W., or his heirs at law pne-third thereof free of said trust; and at the decease of my daughter, Laura, and the arrival at majority of the youngest of any child left by her, they are to convey to her then heirs at law the one-third share or portion of my estate bequeathed in trust to her as aforesaid with any increase thereof while remaining in their possession.”</p> <p>The agreement of compromise was dated May 26, 1916. The manner of its execution is described in the opinion. By the agreement the portions of the will quoted above were stricken out and there were substituted the following provisions:</p> <p>“All the rest and residue of my estate, real and personal, which may belong to me at the time of my decease, I direct shall be divided into two equal portions, and one of said portions I give to my son Arthur W. Wheelwright for his absolute property in fee, and the other of said portions I give to my son Arthur W. Wheelwright, .William A. "Copeland and William Endicott, to have and to hold to them, their heirs and assigns, but in trust for the following uses and purposes, to wit: after paying all necessary charges and expenses of the management thereof, including taxes thereon, to pay the net income thereof, quarterly, to my daughter Laura, wife of George H. Windeler, during her life and on her decease leaving issue her surviving not exceeding one-third of the net income thereof shall be paid to her surviving husband during his life if my daughter shall £>y will so direct and appoint, if such surviving husband was born in my lifetime, and the remainder of said net income, and the whole, after the decease of said husband, or in case no such appointment is made by my daughter, shall be paid quarterly to her children surviving at the time of such payments, the surviving issue of any deceased child to take the parent’s share"1 by right of representation. Twenty years after the decease of said Laura, or sooner if there shall at any time before the expiration of said twenty years be no children of said Laura surviving, said trust shall terminate except as to so much of the said property as may be held in trust for the benefit of a husband of said Laura as herein provided, and the principal shall be paid to the then surviving issue of said Laura taking by right of representation and if there are no issue of said Laura then surviving said principal shall be paid as said Laura shall by will appoint and in default of issue then surviving and of appointment by will is to be paid to those persons'who would be entitled to receive the same had said Laura then died intestate possessed thereof as her own absolute property. If any part of the principal is held for the benefit of a husband of said Laura after the termination of the trust as to the rest of said share held for her benefit as herein provided, the same shall at the decease of such husband be paid to the then surviving issue of said Laura talcing by right of representation, and if there are no such issue then surviving shall be paid as said Laura shall by will appoint and in default of issue then surviving and of appointment by will is to be paid to those persons who would be entitled to receive the same had said Laura then died intestate possessed thereof as her own absolute property.</p> <p>. “Whenever it is necessary or desirable to divide the principal of the trust estate I give to those persons who shall then be trustees hereunder power to value the property constituting the trust estate and to set off such portions thereof to the persons entitled thereto and for the purposes hereof at such valuations as to them may seem fair and equitable, the judgment of the trustees to be final in the matter.”</p>

<p>Practice, Civil, Report by judge. Nuisance. Negligence, Causing death, Matter of conjecture. Tide Water. Wharf. Evidence, Of conscious suffering, Matter of conjecture, Presumptions and burden of proof.</p> <p>After a verdict has been returned for the plaintiff in an action at law and when a motion for a new trial is pending, if the presiding judge is of opinion that the verdict should be set aside solely because of excessive damages and is in doubt as to the status of the defendant’s exceptions taken at the trial in case the verdict in its entirety is set aside solely for that reason, and if the questions of law that arose at the trial affect decisive issues as to liability,'it is proper for the judge to report the case for determination by this court and he has power to do so without passing first on the motion for a new trial.</p> <p>Where the owner of land on the seashore of an island in a harbor sold loam from the island to a contractor and agreed that the contractor might build a pile pier for the purpose of taking away the loam purchased by him, with the privilege of removing the pier, which, if not removed, was to become the property of the landowner, and where the contractor built such a pier extending into tide water, which was an obstruction to navigation, without obtaining any license from the harbor and land commissioners as required by R. L. c. 96, § 17, and, after having used the pier for shipping the loam purchased by him, did not remove the pier, which thereafter was in charge of an agent of the landowner although not used by the landowner, the structure so far as it extends into tide water is a public nuisance, and the landowner is liable under St. 1907, c. 375, for the death of a person in the exercise of due care caused by such obstruction to navigation. In an action against the landowner maintaining the pile pier extending into tide water above described for causing the death by drowning of a person by reason of the collapse of a part of the pier when a motor boat in which such person was travelling was driven against and under the pier by force of the wind and waves, it appeared that the portion of the structure which fell on the motor boat was supported by piles driven by the loam contractor into the bed of the harbor below low water mark, where the soil belonged to the Commonwealth as the owner in fee, and it was held, that, the pier having been built with the knowledge and consent of the defendant as a single structure, it was intended to be used and had been used as a unit, of which all the parts were necessary elements, and that the whole of the pier must be treated as maintained by the defendant, upon whose land one end of it rested, it having been designed for use solely in connection with that land.</p> <p>Distinction pointed out by Rtjgg, C. J., between a public and a private nuisance in regard to the requirement of a notice to abate the nuisance in order to create liability.</p> <p>Evidence of. the maintenance of a public nuisance in tide water in violation of the express terms of a penal statute and dangerous in fact to those members of the public lawfully navigating in the neighborhood is evidence of negligence under St. 1907, c. 375.</p> <p>In the case above described it was said that, in addition to the fact of the maintenance of the public nuisance, there also was evidence in regard to the condition of weakness and want of repair into which the pier had been suffered to fall which tended to show lack of care.</p> <p>In the case above described there was a count for the conscious suffering of the plaintiff’s intestate, who was a woman. She last was seen alive in the cockpit of the motor boat when it came in contact with the pier and her bddy was found on the shore the next morning about a quarter of a mile from the pier. The medical examiner, who made an examination but performed no autopsy, found that drowning was the cause of her death. There was a discoloration of one eye and a bruise on the head which indicated a blow sufficiently severe to have caused unconsciousness instantaneously. No fracture of the skull was indicated. ■ The medical examiner made no examination of the lungs to determine whether there was water in them. There was nothing to indicate whether the blow on the head came before or after the fall into the water. Held, that there was no evidence for the jury of conscious suffering, it being wholly a matter of surmise and conjecture whether there was such suffering or not. t In the case above described it appears to have been assumed that, in the absence of evidence in regard to the due care of the plaintiff’s intestate, the intestate under St. 1914, c. 553, was presumed to have been “a person ... in the exercise of due care” within the meaning of St. 1907, c. 375.</p>

<p>Petition, filed on June 4, 1907, under St. 1902, c. 534, § 8," by the lessees of the building numbered 14-16 on Washington Street in Boston for damages for the petitioners’ loss of occupancy of the basement of that building and the cost of the removal of their goods therefrom by reason of the acts of the Boston transit commission in connection With the taking of a horizontal section of the property for the purpose of constructing the Washington Street tunnel.</p> <p>The respondent’s answer alleged that thepetitionwas not brought within the time provided by statute for the bringing of petitions for the taking of property by the Boston transit commission, and that the petition was not brought in the manner and form provided by statute for the bringing of petitions to recover such damages as alleged, and further alleged that, if any property of the petitioners had been taken as set forth in the petition, it had been paid for in full.</p> <p>In the Superior Court the case was tried before Dana, J. The facts shown by the evidence are stated in the opinion.</p> <p>The petitioners contended that the occupation by the Boston transit commission of that part of the basement not included within the taking was a separate and distinct act by the transit commission affecting the property of the petitioners in that it prevented them from using and enjoying that portion of the premises not included within the taking, and that the transit commission by so depriving them of the use of that portion of their premises had caused an injury to their property within the meaning of St. 1902, c. 534, for which they were entitled to damages separate and distinct from any damages caused by the taking.</p> <p>At the close of the evidence the petitioners asked the, judge to rule as follows:</p> <p>“1. On all the evidence the petitioners are entitled to recover.</p> <p>“2. The entry upon and occupation of the premises under lease to the petitioners by the Boston transit commission in connection with the construction of the Washington Street tunnel, so called, under St. 1902, c. 534, was an injury to the property of the petitioners within the meaning of said chapter 534, for which they are entitled to compensation and for which the respondent is liable under the provisions of said chapter 534.</p> <p>“3. The petitioners’ right of action for injury to their leasehold estate is separate and distinct from any right of action of the owners for the taking or injury of the owners’ estate in the same premises.</p> <p>“4. The petition in this case having been filed within one year from the time when the Boston transit commission began to occupy the petitioners’ premises in connection with said tunnel construction, was seasonably filed under the provisions of St. 1902, c.,534.”</p> <p>The judge refused to make any of these rulings and ruled as follows:</p> <p>" 1. That the petition is not improperly brought by reason that it is brought in the name of the leaseholders.</p> <p>“2. That the petitioners are not entitled to recover because the petition was not brought within one year from the date of taking.</p> <p>"3. The petitioners, as matter of law, cannot recover any damages resulting from the taking of the land for the construction of the tunnel or any damages resulting as a necessary incident or consequence of such taking; that the occupation by the transit commission of the portion of the basement above the upper plane of the taking for the purpose of constructing the tunnel was incident to the taking and a consequence of it; and that all damage for such occupation of the premises above said plane of taking would be recoverable as damage consequent upon the taking.”</p> <p>The judge made the following finding of fact^ "The petitioners suffered no appreciable injury by the occupatiori or use of the one hundred and eight square feet of the area of the basement not included within the lines of the taking. The judge found for the respondent; and the petitioners alleged exceptions.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board that Anna M. Morgan, formerly Anna M. Bott, to whom an award of $10 a week for a period of four hundred weeks from March 30, 1915, was made as, the dependent widow- of Royal P. Bott, an employee of the Otis Elevator Company, who died on April 10,1915, as the result of an injury received in the course of his employment on March 30, 1915, continued to be entitled to such compensation until the termination of the period of the award, notwithstanding the fact of her marriage on June 16, 1916, to Albert W. Morgan, whose earnings were sufficient for the support of both of them.</p> <p>The case was heard by J. F. Brown, J.</p> <p>Before the Industrial Accident Board Anna M. Morgan, the claimant, testified that in April, 1915, her name was Anna M. Bott and she was the wife of Royal P. Bott, who was injured while in the employ of the Otis Elevator Company on March 30, 1915, and died on April 10, 1915. Before his injury she lived with him and they had no children. Since Bott’s death, and up to the present time, she had received compensation at the rate of $10 a week from the insurer. Since Bott’s death, or in June 16, 1916, she was married to Albert W. Morgan, with whom she had lived since. Morgan was and is a salesman in the employ of A. Storrs and Bement Company. When questioned as to Morgan’s salary, the witness stated that she, objected to answering because she did not think it necessary. She stated, however, that his salary was sufficient to support them both; and it had been since their marriage. She testified that she and Morgan lived at 19 Vassal Street, Dorchester, occupying one apartment of a three-story wooden structure. They had a telephone. She had no maid, and had no maid when she lived with Bott. She has never had any children. She stated that while she was living with Bott she worked every day as a bookkeeper, receiving a weekly wage of $13. She did not work because it was necessary for her support, but because she preferred it to housework. She was working at the time of Bott’s injury. Between the time of Bott’s death and the date of her marriage to Morgan she worked. After her marriage to Morgan she worked for á while, but she ceased working because Morgan objected so much. She does not work now. She stated that she does- not spend the $10 a week compensation which she receives from the insurer at the present time for things that otherwise would be purchased by Morgan if she did not have the money, but she spends it for things which she would not ask him to buy for her.</p> <p>The judge made a decree, in accordance with the decision of the Industrial Accident Board, that the new marriage of the claimant in no way affected her right to the compensation originally awarded to her. The insurer appealed.</p>

<p>Tort for 'personal injuries sustained on Easter Sunday, April 23, 1916, by being knocked down by a motor car of the defendant driven negligently by a servant of the defendant on Beacon Street in Brookline near Jordan’s Steps. Writ dated June 2, 1916.</p> <p>The answer, besides a general denial, contained an allegation that, if the plaintiff received the injuries alleged, they were the result of her own negligence and of her failure to exercise due care.</p> <p>In the Superior Court the case was tried before Sisk, J. It was admitted at the trial that there was evidence of negligence on the part of the defendant. The evidence on the issue of contributory negligence on the part of the plaintiff is described in the opinion. On this issue the defendant asked for rulings numbered from nine to thirteen inclusive, which the judge refused to make except so far as they were covered by his charge to the jury. The rulings numbered from nine to twelve inclusive are held by this court to. have been covered Mly and accurately by the charge. The thirteenth ruling requested by the defendant was as follows:</p> <p>“ 13. Upon all the evidence there is nothing to justify a finding that the plaintiff was in the exercise of due care; if the driver was not negligent the plaintiff cannot recover even though the brakes were defective. There is not sufficient evidence to warrant a finding that the accident was solely attributable to the negligence of the driver rather than to the plaintiff’s own negligence.”</p> <p>The judge refused to make this ruling. The jury returned a verdict for the plaintiff in the sum of $1,750; and the defendant' alleged exceptions.</p>

Contract on a covenant of warranty to recover the sum of $100 alleged to have been expended by the plaintiff in procuring the registration in the Land Court of the plaintiff’s title to a parcel of real estate numbered 148 on Townsend Street in the part of Boston called Roxbury, which was conveyed to the plaintiff by the defendant by a warranty deed and was alleged not to have given the plaintiff a good title to the property until the title was perfected by such registration…

<p>Set-off. Practice, Civil, Verdict, New trial.</p> <p>Where a defendant in an action of contract files a declaration in set-off setting forth a claim which is a proper subject of set-off, he has a right to a determination of the question, whether he is entitled to recover the whole or any part of his claim.</p> <p>Where such an action is referred to an auditor who finds for the plaintiff in the main action and that there was no right of recovery upon the declaration in set-off, and the case thereafter is tried before a jury, the auditor’s report being introduced in evidence, if the jury find for the plaintiff in the sum found by the auditor with interest, this, in the absence of any specific finding upon the declaration in set-off, will not warrant the inference that the jury also intended to adopt the auditor’s other finding and to deny recovery upon the declaration in set-off.</p> <p>Where, after the rendering of a verdict in such an action which does not include a finding upon the declaration in set-off, the defendant files a motion for a new trial on the ground that the jury, “ in assessing said verdict, did not make a finding upon the declaration in set-off,” the judge is not warranted in denying the motion on the ground that he is “ convinced that they [the jury] intended to follow the reports of the auditor, and to find for the defendant in set-off, and believed they accomplished this end by reporting simply a verdict for the plaintiff in the main action.”</p>

<p>Tort for personal injuries received when the plaintiff, who was ■employed by the United States to receive the mail at the defendant’s station at Weston, was run into by one of the defendant’s railroad trains. Writ dated February 19, 1916.</p> <p>In the Superior Court the case was tried before Morton, J. The material evidence is described in the opinion. At the close of the evidence the judgje ordered a verdict for the defendant and, by agreement of the parties, reported the case for determination by this court, judgment to be entered upon the verdict for thé defendant if his ruling was correct, and, if it was wrong, judgment to be entered for the plaintiff in the sum of $400.</p>

<p>Contract, Rescission. Fraud. Deceit. Equity Jurisdiction, Specific performance. Estoppel.</p> <p>A person seasonably may rescind a contract which he has been induced to enter into in reliance upon false, though innocent, misrepresentations respecting a cognizable material fact made as of his own knowledge by the other party to the contract.</p> <p>It is fraud for one in negotiations leading to the making of a contract to state a fact as true of his own knowledge when he has no such knowledge.</p> <p>A suit for the specific performance of a contract to purchase capital stock and bonds of a corporation cannot be maintained where it appears that the defendant was induced to make the contract by false, though innocent, misrepresentations respecting a cognizable material fact made as of his own knowledge by the plaintiff.</p> <p>A defendant in a suit in equity for the specific performance of a contract is not estopped to rely upon one good defence, among others urged, merely because he has not always put it forward, where it does not appear that he has acted dishonestly in presenting bis reasons for declining to perform the contract or that the plaintiff has been misled to his harm.</p>

Petition, filed on December 27, 1917, for a writ of mandamus to compel the restoration of the petitioner to the police force of the city of Newton. The case was heard by Braley, J. The evidence is described in the opinion. At the close of the evidence the single justice refused to rule, as requested by the respondents, that on all the evidence the petition should be dismissed, and ordered the issuance of the writ. The respondents alleged exceptions.

<p>Two actions of tort for personal injuries received when the plaintiff fell from a building being erected for the defendant in the first action by contractors for different parts of the work, among whom were the MeClintic, Marshall Company, the plaintiff’s employer, and the defendants in the second action. Writs dated July 3, 1913.</p> <p>In the Superior Court the cases were tried together before Dana, J. The material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant in each cáse and reported the cases to this court for determination, the parties agreeing that, if the judge’s rulings were right, judgments were to be entered on the verdicts; if the ruling was wrong in either case and not in the other, judgment was to be entered for the defendant in the case in which the ruling was correct and for the plaintiff in the other case in the sum of $4,000 and interest, and, if the rulings were wrong in both cases, judgment was to be entered for the plaintiff in each case for $2,000 and interest.</p>

<p> Removal of Suits. Jurisdiction. Trustee Process. </p> <p>Under the Judicial Code, U. S. St. 1911, c. 231, §§ 24, 28, 29, in an action to recover a sum greater than $3,000 brought in the Superior Court by a resident of this Commonwealth against a resident of another State begun by trustee process, in which numerous residents of this Commonwealth are named as trustees and where no service of the writ was made upon the defendant, who appeared spedaily only to file a petition for the removal of the case to the District Court of the United States, the petition for removal must be granted as matter of right on the record and, if any issues of fact are raised, they must be heard and determined in the federal court.</p> <p>In such a case the residence of the persons summoned as trustees is immaterial upon the question of the right to removal, they being merely stakeholders having no interest in the main controversy.</p> <p>The Judicial Code cited above provides in § 29 that a petition for removal must be filed by the defendant “at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,” and Rule 7 of the Superior Court, 1917, requires that answers and like pleadings shall be filed within twenty-one days from the return or entry day of the writ, and upon the petition for removal above described it was held that, as the petitioner had not been served with process and had not appeared voluntarily before he filed his petition for removal, the twenty-one days mentioned in the rule of court "had not begun to run and the defendant had complied with the requirement of the Judicial Code by filing his petition for removal earlier than the time limited by the rule.</p> <p>Under Rule 7 of the Superior Court, 1917, which requires that answers and like pleadings shall be filed within twenty-one days from the return or entry day, the twenty-one days do not begin to run until the time for such return or entry has been specified in a precept of the court served in some adequate form upon the defendant ordering him to appear.</p> <p>Under § 51 of the Judicial Code, which provides that “where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant,” a defendant resident in another State may maintain a petition for removal of the case to the District Court of the United States for the District of Massachusetts if the plaintiff is a resident of this district.</p>

<p>Indictment, returned on September 10,1917, charging that the defendant operated a motor vehicle on August 29,1917, in the city of Springfield for the transportation of passengers for hire as a business without being licensed so to do by the city or its police commission.</p> <p>In the Superior Court the case was tried before Hamilton, J. ' There was a verdict of guilty, and at the defendant’s request the judge reported the case for determination by this court, the verdict to stand if the ordinance violated by the defendant was valid; otherwise, a verdict of not guilty was to be entered.</p> <p>St. 1916, c. 293, is as follows:</p> <p>“Section 1. Cities and towns shall have authority to license and regulate the transportation of passengers for hire as a business 1 between fixed and regular termini by means of any motor vehicle, except the trackless trolley vehicle, so called, not running on tracks or rails, and may impose reasonable license fees, make regulations for the operation of such vehicles within their own limits, and impose suitable penalties for the violation of such regulations: provided, however, that no such motor vehicle shall be operated as aforesaid until the licensee of the vehicle, in additian to complying with all regulations of the city or town in which the vehicle is to be operated, shall have deposited with the treasurer of any city or town in which a license has been taken out, security by bond or otherwise, approved by the city or, town treasurer, in such sum as the city or town may reasonably require, conditioned to pay any final judgment obtained against the principal named in the bond for any injury to person or property, or damage for causing the death of any person, by reason of any negligent or unlawful act on the part of the principal named in said bond, his or its agents, employees or drivers, in the use or operation of any such vehicle. Any person so injured or damaged may sue on the bond in the name of the city or town treasurer, and damages so recovered shall go to the person injured or damaged.</p> <p>“Section 2. Nothing in this act shall be construed as requiring the licensee to file more than one bond, which shall be filed in any city or town in which a license has been taken out.</p> <p>“Section 3. This act shall take full effect in cities upon its acceptance by the city council, and in towns upon its acceptance by the voters of the town at any duly called town meeting. For the purpose of submitting this act to cities and to towns, it shall take effect upon its passage.”</p> <p>' Chapter 7 of the ordinances of Springfield of 1916, which went into effect on November 1, 1916, and, incorporated therein, the amendments made by an ordinance which was passed on August 21, 1917, and became effectual on August 26, 1917,was as follows:</p> <p>“Section 1. No person, firm or corporation shall.engage in the city of Springfield in the transportation of passengers for hire as a business between fixed and regular termini by means of any motor vehicle, except the trackless trolley vehicle, so-called, not running on tracks or rails, unless licensed so to do under the provisions hereof and then only as hereinafter provided.</p> <p>“Section 2. The city council hereby delegates to the police commission the power vested in it by the laws of the Commonwealth to license such motor vehicles for such transportation of passengers as a business.</p> <p>“Section 3. Applications for such licenses shall be made to the police commission on blank forms furnished by said commission and shall set forth the name, place of residence and post-office address of the applicant, a brief description of the motor vehicle a license for which is being applied for and such other information as the said commission may require. The said commission may require that the truth of the allegations in such applications shall be sworn to before an officer authorized to administer oaths.</p> <p>“Section 4. The police commission may grant and issue to persons, firms and corporations duly making application therefor licenses to operate such motor vehicles for such transportation of passengers as a business within the city of Springfield subject to the provisions of law and the ordinances of the city of Springfield, provided they find the person, firm or corporation applying therefor suitable to conduct such business and provided further that they cause such vehicle to be inspected and after such inspection find the same to be proper and safe for use in such business.</p> <p>“Section 5. Persons, firms and corporations making application for such license to operate such vehicles shall designate the route or routes over which they shall desire to operate and with the approval of said commission such route or routes shall be granted. Such route or routes may be changed only with the consent and approval of said commission. Termini of such routes shall be fixed and motor vehicles so licensed shall be driven to such termini before turning around, provided, nevertheless, that no such route shall terminate on Main Street between Franklin Street on the north and Park Street on the south.</p> <p>“Section 6. Every license shall be signed by the police commission and it shall be recorded in the office thereof. It shall name the person licensed, his place of residence and a brief description of the motor vehicle licensed, the number of passengers exclusive of the operator which the vehicle may carry, and shall continue until the first day of May next ensuing, unless sooner rendered void. Such licenses shall be numbered in regular order as granted and shall be expressed to be subject to the provisions of law and of the ordinances of the city of Springfield applicable thereto.</p> <p>“Section 7. The fees for such licenses shall be five dollars for every motor vehicle so licensed.</p> <p>' “ Section 8. The said commission shall issue to the licensee a metal plate bearing the words ‘Licensed motor vehicle No.-, Springfield, 19—, — passengers,’ setting forth the serial number of the license, the date, and the number of passengers exclusive of the operator that the car is licensed to carry. Said plate shall be attached to and kept on the dash or windshield of the motor vehicle in such a position as to be visible to the occupants thereof.</p> <p>“Section 9. No person shall operate any such motor vehicle so licensed within the city of Springfield unless he shall be twenty years of age or older and unless he shall have first obtained a license so to do from the police commission, which license shall state the name, height and weight, color of hair, color of eyes and race of the licensee, his home address and the name of his employer if he operates such car as an employee. The application for such license shall be on a blank furnished by said commission, and the form of the application and the kinds of information to be furnished therein by the applicant shall be such as from time to time may be prescribed by said commission, and said commission may require that the truth of the allegations in such application shall be sworn to before an officer authorized to administer oaths. The said commission shall not grant such, a license to any applicant who has not demonstrated to the satisfaction of said commission his ability to drive the vehicle proposed to be operated by him. Such licenses shall be signed by the police commission, shall be numbered in regular order as granted, shall be recorded in the office thereof and shall expire on the first day of May next sue- ' ceeding the date thereof. The fee for such license shall be one dollar.</p> <p>“Section 10. The said commission at the time of issuing such license shall deliver to the licensee a metal badge bearing the words: — ‘Licensed Chaüffeur No. -, Springfield,’ setting forth the serial number of the license, which badge shall be worn conspicuously upon the front of the hat or cap of the licensee at all times when he is operating any motor vehicle licensed under the provisions of this ordinance; and said commission shall also then deliver to the licensee an identification card, stating thereon the number of the license, the name, age, height, weight, color of the hair, color of the eyes and race of the licensee, and the term of the license. No such licensee shall permit any other person to wear such badge, nor shall any person wear the badge of any other licensee, when operating any motor vehicle. Every person so licensed, while operating any motor vehicle licensed under the provisions of this ordinance, shall carry his identification card and the license for such vehicle, and at any time when requested by any police officer shall show such license and such identification card.</p> <p>“Section 11. No motor vehicle so licensed shall be operated without having a sign thereon inform approved by said commission stating the main street or streets of the route, the termini of the route and the fare to be charged, which sign shall be so placed near the lower part of the windshield or on the dash or hood of the vehicle as to be plainly visible to persons on the street in front of the vehicle. The letters and figures on such sign shall be not less than two and one-half inches in height and shall have a stroke of not less than one-quarter inch in width. No other sign of any kind except the owner’s name or symbol shall be placed or carried on any such vehicle.</p> <p>“Section 12. A person licensed to operate such motor vehicle may with the permission of the police commission substitute another vehicle of the same carrying capacity for the vehicle so licensed. Before granting such permission the police commission shall cause said vehicle to be inspected and shall not give such permission unless they find the said vehicle to be proper and safe for use in such business. In case of such substitution the license shall be amended so as to show the substitution and to give a brief description of the motor vehicle so substituted.</p> <p>“Section 13.- A license shall not be issued until the license fee. has been paid to the city treasurer nor until he has received a bond approved by him payable to him as such treasurer in the sum of one thousand dollars signed by the licensee as principal and a corporation as surety) which shall have complied with all the provisions of law as to transacting the business of a guarantee, fidelity and surety company within this Commonwealth, or such other sureties as. shall be approved by the city treasurer, who shall be jointly and severally liable, conditioned to pay any final judgment obtained against the principal named in the bond for any injury to person or property, or damage for causing the death of any person, by reason of any negligent or unlawful act on the part of the principal named in said bond, his or its agents, employees or drivers, in the use or operation of the vehicle so licensed. In case the surety on any such bond is an individual his execution thereof shall be acknowledged before an officer duly authorized to take acknowledgments.</p> <p>“Section 14. In case said city treasurer at any time shall determine that any surety on any such bond is not possessed of sufficient property to be able to respond to the obligation of surety on such bond, whether any such damage may have occurred or accrued or not, said city treasurer after giving the principal thereof an opportunity to be heard, may require such principal to furnish another or further surety on such bond, or a new bond, for the remainder of the term of the license of the motor vehicle to which such bond relates, and if within five days after notice of such requirement such principal shall not furnish such new bond or such other or further surety, approved by said city treasurer, the motor vehicle license to which such bond relates, without any further action by the police commission, shall stand suspended until such new bond or such other or further surety, approved by said city treasurer, shall be furnished.</p> <p>“Section 15. In case any surety on any such bond at any time may desire to terminate his liability on such bond as to any such damages that might occur or accrue in the future, such surety may terminate the same by giving at least five days’ previous written notice thereof to the principal named in such bond and to the, city treasurer, and upon receipt of such notice such principal shall furnish another surety on such bond or a new bond for the remainder of the term of the license of the motor vehicle to which such bond relates, and if before such termination of such liability of such surety such principal shall not furnish such new bond or such other surety, approved by the city treasurer, the motor vehicle license to which such bond relates, without any action by the police commission, shall stand suspended until such new bond or such other surety, approved by the city treasurer, shall be furnished.^</p> <p>“Section 16. No person operating any motor vehicle so licensed shall refuse to carry any person offering himself to be carried as a passenger therein, unless the seats of the same are fully occupied, or unless such person be intoxicated or disorderly.</p> <p>“Section 17. Every motor vehicle so licensed shall be operated for six or more hours in every day during the term of its license that it is used in such transportation of passengers as a business; but no person shall operate any such vehicle for more than twelve hours in any one day.</p> <p>“Section 18. No person operating any motor vehicle so licensed shall solicit passengers by outcry or make any noise for the purpose of soliciting passengers.</p> <p>“Section 19. No motor vehicle so licensed shall stand to wait for passenger in any street, square or public place, except on such</p> <p>portions thereof and during such hours as may Be designated therefor by said police commission, and said commission may from time to time designate locations in streets, squares, and public places, in which general street travel will not be materially interfered with, where such vehicles may so stand; and said commission, at any time when it finds that any such location materially interferes with public travel, may cancel such locations, and said commission may at any time cancel any such hours for such use and prescribe other hours therefor.</p> <p>“Section 20. No motor vehicle so licensed shall be stopped to take on or to discharge passengers at any place on any street except at the curb; nor shall any passenger be permitted to enter or leave the' vehicle except from the side thereof nearest the curb, but this latter provision shall not apply to a passenger on a front seat where the operator’s seat is on the side of the curb.</p> <p>“Section 21. No motor vehicle so licensed shall be turned around on Main Street between Franklin Street on the north and Park Street on the south.</p> <p>“Section 23. No greater number of passengers shall be carried at any one time in any such motor vehicle so licensed, than the license of -such vehicle shall specify, provided that in addition thereto children under seven years of age may be carried therein in arms or seated on the laps of parents or adult person accompanying them, but no passenger with a child in arms or seated on the lap shall be permitted on any front seat of the vehicle. Nor shall any person be permitted to stand upon any running board or step of any such vehicle or to sit upon any fender, dash, top or door thereof.</p> <p>“Section 24. No person operating any motor vehicle so licensed shall collect fares, make change, or take on or discharge passengers while such vehicle is in motion; nor shall he have a lighted cigarette, cigar or pipe in his possession while any passenger is being carried therein, nor drink any intoxicating beverage of any kind, nor be under the influence thereof, while engaged in operating such vehicle.</p> <p>“Section 25. Every person operating any motor vehicle so licensed shall stop the same before crossing the tracks of any steam railroad at the grade thereof.</p> <p>“Section 26. No person operating a motor vehicle so licensed shall place or maintain or permit to be placed or maintained on such vehicle any curtain or other obstruction in such a way as to interfere with a view of the interior of such vehicle except when it may become necessary so to do to protect passengers from the weather.</p> <p>“Section 27. No passenger except by special contract shall be charged more than five cents for being carried in any motor vehicle so licensed between any two points in the city within the circle with a radius of two and one-half miles from Court Square; nor shall any passenger be charged or required to pay a greater fare than that set forth on the sign required hereby, or charged or required to pay for any piece of hand baggage more than the amount of the fare charged for the transportation of the passenger, but no charge shall be made for hand baggage which shall be held by the passenger without inconvenience to other passengers.</p> <p>“Section 28. Every person operating any such motor vehicle so licensed shall deliver any article left therein by any passenger to the police commission not later than twenty-four hours after finding the same and shall receive a receipt therefor from said commission, and said commission shall provide for returning the same to the owner upon proper identification and proof of ownership. All such articles delivered to said commission and not claimed within ninety days from such delivery shall be delivered to the licensee of the vehicle in which they were left.</p> <p>“Section 29. Whenever in the judgment of the police commission public convenience and necessity so require the commission may grant and issue such licenses for such motor vehicles for terms' of one or more weeks. The terms of such licenses shall be stated therein. The fees for such licenses shall be at the rate of one dollar for each week of the term thereof. All of the provisions of this ordinance shall apply to such licenses except as otherwise provided in this section.</p> <p>“ Section 30. Nothing in this ordinance contained shall be deemed to apply to any motor vehicle used exclusively for sightseeing purposes or for carrying guests to or from any hotel.</p> <p>“Section 31. Any person violating any of the provisions of this ordinance shall be liable to a fine not exceeding $20 for each such offence, and any violation thereof on any day shall constitute a separate offence. The police commission may suspend or revoke any license granted hereunder for the violation of the provisions of this ordinance, or of any other law or ordinance or for other sufficient cause, provided that the licensee shall be given an opportunity to be heard before any suspension or revocation of . his license.”</p> <p>The amending ordinance also contained the following provision:</p> <p>“Section 13. Every provision of every regulation of chapter 7 of the ordinances of 1916, being ‘An Ordinance Relative to the Licensing and Regulating of .Certain Motor Vehicles’ and approved October 23, 1916, as hereby amended, is intended to be separable so far as possible, and if any special requirement or provision therein, although intended to be reasonable, should be adjudged to be invalid, it is not intended that the same shall affect the validity of any other provision or provisions therein, and it is intended that every general provision referring to or involving other provisions therein shall apply only to all such other provisions as are valid.”</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort, the first action being by a minor (hereinafter called the plaintiff) for personal injuries received when he was knocked down and run over by an automobile owned by the defendant and operated by a chauffeur (Anderson by name) in his general employ, and the second action being by the father of the plaintiff in the first action for consequential damages. Writs dated July 15, 1915.</p> <p>In the Superior Court the cases were tried together before Hitchcock, J. The due care of the plaintiff and the negligence of the chauffeur were admitted.</p> <p>The trial occupied two days. The evidence relating to the failure of the plaintiff to find the chauffeur or his wife, referred to in the opinion, was as follows:</p> <p>On the second day of the trial H. R. Hodsdon, Esquire, associated as counsel for the plaintiff, testified that on the afternoon of the previous day he and the sheriff drove in a motor car to a cottage in Magnolia where the chauffeur and his wife lived in the summer and where the witness the week before had seen him and the wife and where the defendant’s machine was kept; that the sheriff knocked at the back and the front doors, got no response, found no one and was unable to serve a subpoena on either the chauffeur or his wife; that the sheriff and the witness then came back to Salem and the same day in the evening again went over the road to the Anderson cottage; that the place was dark, locked up and that no one could-be found; that they then went to the defendant’s house and the sheriff subpoenaed another witness; that after that they drove back to Salem, where a further search was made for Anderson; that he did not see the defendant or his wife or the touring car at Magnolia. One Minnie Fraser, who had testified on the first day of the trial, recalled on the second day, testified that when she came to court the day before, she came from the house in a bus with the chauffeur and his wife and that they went in the bus with her and took the train from Magnolia and came to Salem; that they got off at Salem, the three of them together, and went with Mr. Merrill, a lawyer associated with counsel for the defence, that they shook hands with Mr. Merrill in the station and went with him to an office near the court house, and that she did not see Anderson after that.</p> <p>Othér material evidence is described in the opinion.</p> <p>At the close of the plaintiff’s evidence, the defendant rested and moved in each case that a verdict be ordered for him. The motions were denied. The jury found for the plaintiff in the first action in the sumí of $2,000, and in the second action in the stun of $200; and the defendant alleged exceptions.</p>

<p>Contract or tort. Writ dated April 17, 1917.</p> <p>The officer’s return stated that he had "attached specially all the right, title and interest the” defendant had "in and to the following described piece or parcel of real estate the record title to which stands in the name of Agnes M. Peters,” and described the parcel by metes and bounds.</p> <p>On December 6, 1917, Agnes M. Peters filed a petition, which as afterwards amended, alleged that she was the wife of the defendant, that the plaintiff had made an unreasonable attachment of her property, asserting that property standing in her name was in reality the property of her husband, that such property had been purchased with her own money and was owned by her and that the defendant had no attachable interest therein. The prayer was that the special attachment should jbe discharged and for such other relief as should seem proper.</p> <p>The petition was heard by Wait, J., who ruled that the petitioner’s remedy was “after judgment under the statute providing for special attachments,” dismissed the petition as a matter of law and reported the case for determination by this court.</p>

<p>Tort by a child for injury resulting in blindness alleged to have been caused by negligence of the defendant, a physician, in the rendering of professional services shortly after the plaintiff’s birth, which occurred on April 14, 1916. Writ dated December 5,1916.</p> <p>In the Superior Court the action was tried before Lawton, J.</p> <p>The evidence stated in the bill of exceptions as to failure of the defendant to attend the plaintiff promptly was as follows: -•</p> <p>"The father and mother of the plaintiff and a Mrs. Hagan testified that the eyes of the baby were all right until Saturday, April 22, 1916, when the right eye became swollen, red and had some little unnatural discharge and the left eye was not as badly affected. The situation of things grew worse and on Monday, April 24, 1916, the defendant was summoned, and after being solicited to come on several occasions, appeared’at the house of the plaintiff’s father, Tuesday, April 25, 1916, between five and six o’clock in the afternoon.”</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence the plaintiff asked for and the trial judge, subject to the plaintiff’s exception, refused to give the ruling quoted in the opinion. The defendant asked for and the trial judge gave, subject to exceptions by the plaintiff, the following rulings:</p> <p>“1. If the infection in the plaintiff’s eyes came from an outside source in no way related to treatment administered by the defendant, or connected therewith, the jury should return a verdict for the defendant.</p> <p>“ 2. The fact that the defendant did not answer a call for treatment for the plaintiff promptly does not constitute negligence.</p> <p>"3. If the jury finds that upon the evidence the defendant did not have charge of the birth of the child, the defendant owed no duty to the plaintiff to put drops of nitrate of silver in the plaintiff’s eyes and the jury should return a verdict for the defendant.</p> <p>“4. That the defendant did not order the plaintiff taken to the hospital is not in itself evidence of negligence sufficient to justify a verdict for the plaintiff.”</p> <p>Portions of the judge’s charge to which the plaintiff excepted were as follows:</p> <p>“For one thing, you do not have to consider and ought not to consider whether he made a report to the board of health as promptly as he ought to have done, or as the statutes expect that he should make a report. As I understand it, there is no question but what he did make the report that the board of health required, but some question has been raised whether he ought not to have done it twenty-four, forty-eight, or seventy-two hours earlier. But I instruct you that anything of that sort, any neglect of that sort could not have had any bearing on the progress of the child’s disease, and if you say that he was negligent in that respect; if you say the board of health would have good ground to complain that he did not report it more promptly, it has n’t anything to do with this case, and it is of no consequence. . . .</p> <p>“There has been some suggestion, apparently, that it was negligence — that it was neglect of the skill that an ordinary physician should have, failure of the skill that an ordinary physician ought to exercise — that he did not immediately send the child to a hospital, or perhaps advise that the child should be sent to a hospital, . . . that he did not immediately advise that the child should be sent to the hospital. I instruct you that that is not evidence of negligence, if you find, and it is admitted, that he did not. I instruct you that the fact he did not immediately send the child to the hospital, or immediately advise that the child be sent to a hospital, is no evidence of negligence.”</p> <p>There was a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract on an account annexed by a railroad corporation to recover balances, amounting in all to $652.36, alleged to be due for freight and refrigeration charges on certain carloads of cantaloupes, “pie plant” and peaches shippedininterstate commerce and consigned to the defendant at Boston. Writ dated May 16, 1914.</p> <p>The account annexed contained nine items.</p> <p>The first item, dated August 31, 1911, was for freight and refrigeration charges on a carload of cantaloupes, $330.69, less paid on account $222.20, leaving a balance of $108.49.</p> <p>The second item,- dated September 1, 1911, was for similar charges on another carload of cantaloupes, $333.05, less paid on account $224.45, leaving a balance of $108.60.</p> <p>The third, fourth, fifth and sixth items were like the second, except as to the dates, which were respectively September 2, 4, 5 and 11, 1911, and except the amount of the sixth item, which was $331.11, less paid on account $232.35, leaving a balance of $98.76.</p> <p>The seventh item, dated April 28, 1912, was for icing cat containing pie plant, $1.25.</p> <p>The eighth item, dated September 12, 1912, was for icing cat containing peaches, $5.</p> <p>The ninth item, dated September 13, 1912, was for icing car containing peaches, $5.</p> <p>The defendant’s answer, among other matters, set up a claim in recoupment based on alleged negligence of the plaintiff in computing the freight and other charges upon the shipments set forth in the items of the plaintiff’s account annexed.</p> <p>In the Superior Court the case was tried before Bell, J.,'on an agreed statement of facts and the originals of the freight bills, introduced in evidence by the defendant, of which copies were annexed to the agreed statement of facts, and no further evidence was offered on either side. The substance of the facts stated and the inferences that the jury were warranted in drawing are described in the opinion.</p> <p>After the parties had rested, the defendant moved that a verdict be ordered for the defendant generally and also separately upon each item of the account annexed. The plaintiff also moved that a verdict be ordered for the plaintiff for the full amount claimed in the declaration.. The judge refused to make at that time any rulings upon these motions and stated to the counsel that he desired to have the jury pass upon certain issues before making any rulings. Both parties excepted. Thereupon the judge framed and submitted to the jury on all the evidence thirty questions, which, with the answers of the jury, were as follows:</p> <p>“1. Did or did not the defendant receive the letter from Van Ummersen, general freight agent, dated September 14, 1911?” The jury answered, “Yes.”</p> <p>“2. If the jury answer interrogatory 1 ‘yes,’ on what day was the same received by the defendant ? ” The jury answered, “September 15.”</p> <p>“3. Was or was not the plaintiff notified by the defendant before delivery to the defendant of any of the six carloads of cantaloupe that the defendant was not the owner of said six carloads, but was merely receiving them in its. capacity as commission merchant and as agent for the shipper?” The jury answered, “Yes.”</p> <p>“4. Did or did not the defendant accept the first carload of cantaloupe understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges thereon?” The jury answered, “No.”</p> <p>“5. Did or did not the defendant accept the second carload of cantaloupe understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges thereon?” The jury answered, “Yes.”</p> <p>“6. Did or did not the defendant accept the third carload of cantaloupe understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges thereon?” The jury answered, “Yes.”</p> <p>“7. Did or did not the defendant accept the fourth carload of cantaloupe understanding that the plaintiff looked to the defendant for the payment of all freight and' other lawful transportation charges thereon ? ” The jury answered, “Yes.”</p> <p>“8. Did or did not the defendant accept the fifth carload of cantaloupe understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges thereon ?” The jury answered, “Yes.”</p> <p>“9. Did or did not the defendant accept the sixth carload of cantaloupe understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges thereon?” The jury answered, “Yes.”</p> <p>“10. Did or did not the defendant accept the carload of pie plant understanding that the plaintiff looked to the defendant for the payment of all freight and 'other lawful transportation charges thereon?” The jury answered, “Yes.”</p> <p>“11. Did or did not the defendant accept the carload of peaches described in the eighth item of the account annexed to the declaration understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges, thereon?” The jury answered, “Yes.”</p> <p>“ 12. Did or did not the defendant accept the carload of peaches described in the ninth item of the- account annexed to the declaration understanding that the plaintiff looked to the defendant for the payment of all freight and other lawful transportation charges thereon?” The jury answered, “Yes.”</p> <p>“13. Did or did not the defendant impliedly .agree with the plaintiff to pay the balance of freight and transportation charges, as set forth in the first item of the account annexed to the declaration ?” The jmy answered, .“No.”</p> <p>“14. Did or did not the defendant impliedly, agree with the plaintiff to pay the balance of freight and transportation charges, as set forth in the second item of the account annexed to the declaration?” The jury answered, “Yes.”</p> <p>“15. Did or did not the defendant impliedly agree with the plaintiff to pay the balance of freight and transportation charges, as set forth in the third item of the account annexed to the declaration?” The jury answered, “Yes.”</p> <p>“16. Did or did not the defendant impliedly, agree with the plaintiff to pay the balance of freight and transportation charges, as set forth in the fourth item of the account annexed to the declaration?” The jury answered, “Yes.”</p> <p>“17. Did or did not the defendant impliedly agree with the plaintiff to pay the balance of freight and transportation charges, as set forth in the fifth item of the account annexed to the declaration?” The jury answered, "Yes.”</p> <p>“ 18. Did or did not the defendant impliedly agree with the plaintiff to pay the balance of freight and transportation charges, as set forth in the sixth item of the account annexed to the declaration ?” The jury answered, “Yes.”</p> <p>“19. Did or did not the defendant impliedly agree with the plaintiff to pay the balance of icing charges, as set forth in the seventh item of the account annexed to the declaration ? ” The jury answered, “Yes.”</p> <p>"20. Did or did not the defendant impliedly agree with the plaintiff to pay the balance of icing charges, as set forth in the eighth item of the account annexed to the declaration?” The jury answered, “Yes.”</p> <p>“21. Did or did not the defendant impliedly agree with the plaintiff to pay the balance of icing charges, as set forth in the ninth item of the account annexed to the declaration ? ” The jury answered, “Yes.”</p> <p>“22. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the first item of the account annexed to its declaration?” The jury answered, “Yes.”</p> <p>“23. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the second item of the account annexed to its declaration?” The jury answered, “No.”</p> <p>“24. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the third item of the account annexed to its declaration?” The jury answered, “No.”</p> <p>“25. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the fourth item of the account annexed to its declaration ?” The jury answered, “No.”</p> <p>“26. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the fifth item of the account annexed to its declaration?” The jury answered, “No.”</p> <p>“27. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the sixth item of the account annexed to its declaration?” The jury answered, “No.”</p> <p>“28. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the seventh item of the account annexed to its declaration?” The jury answered, “No.” “29. Is or is not the plaintiff estopped from maintaining its <da.im against the defendant as set out in the eighth item of the account annexed to its declaration?” The jury answered, “No.”</p> <p>“30. Is or is not the plaintiff estopped from maintaining its claim against the defendant as set out in the ninth item of the account annexed to its declaration?” The jury answered, “No.”</p> <p>Both parties excepted to the rulings of the judge that there were issues of fact to be submitted to the jury, but no question was raised and no objection was made to the form of the questions so submitted.</p> <p>Both parties asked the judge' to make certain rulings, some of which he made and some of which he refused, subject to the exception of the requesting party.</p> <p>After the answers of the jury had been received the defendant filed a motion that certain of the answers be set aside and the issues on which they were given be discharged. The judge, after hearing, denied the motion.</p> <p>The judge ruled that the plaintiff could not recover on the first item of the account annexed, but ordered a verdict for the plaintiff on the remaining eight items amounting to $543.87 principal and $175.13 interest, making a total of $719.</p> <p>After the return of the verdict as ordered and before the recording thereof, the judge reserved leave, with the consent of the jury, to enter a different verdict if, upon the exceptions taken or the questions of law reserved, this court should decide that such different verdict should have been entered. Thereupon by the agreement of both parties the judge reported all questions of law raised upon the record for determination by this court. If his rulings were correct judgment was to be entered for the plaintiff on the verdict, but if his rulings in whole or in part were wrong such judgment was to be entered or order made as ought to have been entered or made.</p>

<p>Receiver. Bankruptcy. Jurisdiction. Attorney at Lam, Counsel fees.</p> <p>Where at the time of the filing of a petition in bankruptcy the property of the bankrupt was in the hands of a receiver appointed by the Superior Court, that court has jurisdiction to settle the accounts of its receiver relating to his charge of the property up to the time of the adjudication in bankruptcy some months after the filing of the petition.</p> <p>Upon a petition to the Superior Court, alleging that the debts of a certain corporation carrying on an established manufacturing business were not being paid although its assets were sufficient for that purpose and containing no allegation of insolvency, that court appointed a receiver to conserve the assets and conduct the business of the corporation. About a month later a petition in bankruptcy was filed in a federal court against the corporation. About five months after that the corporation was adjudicated a bankrupt and a trustee in bankruptcy was appointed. Thereupon the receiver appointed by the Superior Court, who up to that time had operated the business of the corporation with the knowledge and consent of all persons interested, turned over to the trustee in bankruptcy all the assets of the bankrupt in his hands, excepting cash and bills receivable due to the receiver and such other assets as by agreement between the trustee and the receiver could be handled and turned into cash more advantageously by the receiver. A decree of the Superior Court was made recognizing and confirming this arrangement and this decree was assented to expressly by the trustee. Another decree of the Superior Court reciting these facts and by reason of them reducing the bond of the receiver also was assented to by the trustee. Upon a petition in the Superior Court for the allowance of the final account of the receiver, the trustee in bankruptcy appeared by counsel and the only objection raised was in regard to the amount charged by the receiver for his services. A decree was entered, entitled a final decree, settling the receiver’s accounts, approving the payments made by him both before and after the filing of the petition in bankruptcy but before the appointment of the trustee in bankruptcy, approving bills for services of counsel rendered to the receiver and ordering them paid, determining the amount of the receiver’s compensation, fixing the amount to be paid to the surety on his official bond and directing him to transfer and deliver to the trustee all property of the bankrupt remaining in his hands after making these payments. The trustee in bankruptcy appealed from this decree on the ground that the allowance of the sums to be paid as compensation to the receiver and his attorneys was beyond the jurisdiction of the court. Held, that the Superior Court, which rightly appointed the receiver, had jurisdiction of all questions relating to his accounting and final discharge, including the fixing of the amounts of compensation for him and his attorneys.</p> <p>In the case above described, in which the evidence was not reported, it was held that, in the absence of any evidence, the charges for compensation could not be pronounced to be excessive and that the finding of the Superior Court on that question of fact could not be set aside.</p> <p>In fixing the amount to be allowed to the receiver for expenses incurred for counsel fees it was held to have been proper to allow the amount of compensation paid to counsel for services rendered for the common benefit of the persons interested in bringing the original bill in equity upon which the receiver was appointed.</p>

<p> Clerk of Courts. Police, District and Municipal Courts. Statute. </p> <p>By the increase, effected by St. 1917, c. 340, § 1, upon its acceptance by the mayor and city council of Boston, in the salaries of the clerks of police, district and municipal courts, with certain exceptions, to three fourths of the salaries received by the justices of their respective courts from three fifths thereof, as previously provided by St. 1904, c. 453, § 1, the salaries of the assistant clerks, which by the same section of St. 1904, c. 453, had been made two thirds of the salaries of the clerks, were increased to two thirds of the increased salaries of the respective clerks.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 26, 1917, by the trustees under a declaration of trust dated December 12, 1911, doing business, under the name School Street Associates, in holding, improving and managing certain real estate in Belmont, against the Fidelity Trust Company, a corporation, seeking to impose a trust for the benefit of the plaintiffs on certain funds deposited with the defendant by one Mariano Alvero in checks drawn by him upon money of the plaintiffs in the Merchants National Bank of Boston which were signed “School Street Associates, By M. Alvero, Assistant Treasurer.”</p> <p>The case came on to be heard by De Courcy, J., who overruled so much of the defendant’s answer as was by way of demurrer and, at the request of the parties, reported the case upon the bill and answer and an agreed statement of facts for determination by this court, such decree to be entered as equity and justice might require.</p> <p>The material facts are stated in the opinion. The first of the checks deposited with the defendant was dated September 5,1916. It was for $300 and was made payable to Alvero. All the other checks were made payable to the Fidelity Trust Company and their dates and amounts were as follows: September 5,1916, $700, .September 8, 1916, $500, September 8, 1916, $500, September 16, 1916, $500, October 4, 1916, $500, October 10, 1916, $500, October 26,1916, $500, November 3, 1916, $500, November 10,1916, $200, November 14,1916, $200, November 17,1916, $100.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a carpenter against his employer for personal injuries sustained before the workmen’s compensation act took effect, it appeared that the plaintiff was injured when he was at work piling sawed hard pine lumber by means of an engine, a derrick and a pair of tongs and that one of the timbers slipped from the tongs and struck the plaintiff on the head. There was evidence that the tongs were unsuitable for hoisting such timbers, being intended for use only in handling round logs and that the only safe tongs for such timbers were chain tongs, which easily could be had in the open market. The jury found, in answer to special questions, that the tongs supplied by the defendant were in common use for the purpose for which the defendant used them and were used commonly by contractors and builders for such work. The jury returned a general verdict for the plaintiff, but the judge ruled that on the special findings the action could not be maintained. Held, that the ruling was wrong; because, if the tongs were unsuitable and unsafe and the defendant in the exercise of reasonable diligence should have known this, it was no defence for him that he had proceeded in the usual manner pursued by other builders under like circumstances.</p>

<p>Devise and Legacy, Identity of residuary legatee.</p> <p>Where the will of a testator, whose only sister of the whole blood had died before him and who left surviving him four brothers of the whole blood and six brothers and two sisters of the half blood, provided that his residuary estate, after the " death of his wife, should be given “in equal shares to my several brothers and my sister, to the exclusion of my brother Patrick Mullaney, [a brother of the whole blood,] and to the children of any of said brothers or sister who may have deceased, by right of representation, to the exclusion of said Patrick as heir of my said estate from or through any of my other brethren or sister or their children,” and where it does not appear whether the sister of the whole blood died before or after the will was made, the testator’s use of the word “sister” 'shows his intention to confine his gift to hjs kindred of the whole blood.</p>

<p>Contract, What constitutes, -Construction, Consideration, Performance and breach, Termination, Of agency. Frauds, Statute of. Agency, Agent’s compensation. Insurance, Agency.</p> <p>An insurance solicitor made a contract in writing with a firm composed of two partners, who were the general agents of a life insurance company, by which he agreed to act as a solicitor for that company only and which provided as his compensation during the general agency of the firm a certain percentage of premiums on new business procured by him and a different "percentage on all renewal premiums, and also provided that the contract should be terminated as between the parties only in certain specified instances. One of the firm retired as a partner. The remaining partner then alone made a new contract' of general agency with the company, but, instead of making a new contract in writing with the solicitor, agreed with him orally that the provisions of the contract formerly made with him by the firm should continue in force. Held, that the new oral contract was supported by a good consideration and was not terminable at the will of the general agent, but could be terminated only in accordance with the provisions of the former contract in writing which it adopted.</p> <p>A provision of the contract thus adopted by the oral contract, which provided for its termination if the solicitor left the agency of the company to engage in other business, or became connected with another life insurance company or severed his connections with the agency, was held to mean that such termination should occur upon a voluntary retirement by the solicitor, and not to mean that it would occur upon his discharge for a cause not included in the contract’s provisions or upon his enforced resignation.</p> <p>Where such a contract, made by the company’s general agent, was a complete contract for services to be rendered by the solicitor, the compensation for which was to be paid by the company, the company was held to have no power to terminate it in the absence of a provision in the contract for such termination by the company.</p> <p>The mere fact, that the solicitor above described advocated and sought legislation providing for a different form of endowment policy than that issued by the company, does not show disloyalty on his part warranting his discharge, where it appears that he honestly believed that the form of policy which he advocated, if adopted, would enure to the advantage not only of the insured but also of the company, and that his activities in this regard were known to the company.</p> <p>Where, at the trial of an action upon the contract above described by the solicitor against the company, it appeared that the company and the general agent both regarded the contract as binding upon the company, that its officers knew of the contract, that it paid the solicitor his commissions thereunder and that the company was the actor in discharging the solicitor and fixing the terms of his dismissal, findings of the judge were held to have been warranted that the company was liable upon the contract for the continued payment to the solicitor of renewal premiums according to the contract’s provisions.</p> <p>In an action upon the same contract against the general agent it was held that the general agent likewise-was liable personally to the solicitor, although the solicitor could have but one satisfaction in damages.</p> <p>An oral contract between -a solicitor of insurance and a life insurance company or its general agent, which is to continue in force during the continuation of the general agency or until it is terminated by reason of one of several specified acts on the part of the solicitor, and which provides for the payment to the solicitor as compensation of a certain percentage of first year’s premiums and another percentage of all renewal premiums upon policies procured by him from the company, is not within the provisions of the statute of frauds, R. L. c. 74, § 1, cl. 5, enacting that “No action shall be brought . . . Upon an agreement that is not to be performed within one year from the making thereof” unless the agreement or some memorandum thereof is in writing, as the contract, although it may continue in force for years, is capable of being performed fully, within a year.</p>

<p>Writ of error, issued September 29,1917, to the Chief Justice of the Superior Court upon the petition of the defendant in an action of contract begun on June 15, 1895, upon three promissory notes.</p> <p>The assignments of error, and the proceedings upon the writ are described in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Tort against a firm of bankers and stockbrokers for the alleged conversion of two bonds, described in' the opinion, sold by the defendants for one Small who had received them from one Bassett, who had stolen them from the plaintiff. Writ dated January 12, 1916.</p> <p>In the Superior Court, the action was submitted to Hammond, J., without a jury, upon a case stated, and was reported to this court for determination upon the pleadings and the case stated.</p>

<p>Bill in equity, filed in the Superior Court on May 18, 1916, and afterwards amended, seeking to enjoin the defendants from proceeding to enforce a warrant for the sale of certain real estate, issued upon a petition for the enforcement of a mechanic’s lien.</p> <p>The material allegations of the bill are described in the opinion. The defendants demurred. The demurrer was heard by Lawton, J., and by his order an interlocutory decree was entered sustaining it. Subsequently a final decree dismissing the bill was entered by order of Fox, J., and the plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Sale, Warranty. Contract, Construction. Words, “Provincial.’’</p> <p>In a contract for the sale of cod liver oil the phrases “cold pressed provincial medicine oil” and “pure medicinal cod liver oil” were held to be descriptive of the kind and quality of oil required so as to constitute words of warranty.</p> <p>In an action for the price of cod liver oil sold and delivered, where the defendant contended that he was not bound to take and pay for the oil because it was not of. the kind and quality required by- the contract, it was held that there was evidence warranting a finding that “cold pressed provincial medicine oil” and “pure medicinal cod liver oil” meant, as used in the trade, merchantable provincial or domestic oil made from the fresh livers of the cod and kindred fish, such as pollack, hake and haddock, excluding oil obtained from the livers of dog fish, and that the oil furnished by the plaintiff was of this kind and quality.</p>

<p>Tort against three corporations and ten individual defendants. Writ dated September 30, 1916.</p> <p>The essential allegations of the substituted declaration are described in the opinion. The plaintiffs alleged that the defendant J. Stevens Arms Company agreed to pay the plaintiffs a commission of fifty cents per rifle on such orders as they procured for it, payment to be made on delivery of the rifles by that corporation and that on March 10, 1915, the plaintiffs procured for the J. Stevens Arms Company an order from the purchasing representatives of the Imperial Government of Russia for one million rifles at the agreed price of $25 per rifle. The second count concluded, as also substantially did the first count, as follows:</p> <p>"The plaintiffs say that the said conspiracy and agreement between the defendant J. Stevens Arms Company and the defendant Westinghouse Electric and Manufacturing Company, and the bringing into existence and the formation of the defendant New England Westinghouse Company, as herein set forth, were made for the sole purpose of attempting to unlawfully deprive the plaintiffs of their just commissions which they had earned in the procurement of the said customer for the benefit of the defendant J. Stevens Arms Company and the defendant Westinghouse Electric and Manufacturing Company. The plaintiffs further say that, although requested to do so, the defendant J. Stevens Arms Company has refused and.neglected to pay for the procuring of said customer as aforesaid, and the plaintiffs have been thereby entirely deprived of the benefits of said contract.</p> <p>“Wherefore the plaintiffs say that they have .been damaged in the sum of $500,000.</p> <p>“Both counts are for one and the same cause of action.”</p> <p>The defendants severally demurred to the declaration.</p> <p>The case was argued on the demurrers before Jenney, J., who made orders sustaining each of the demurrers, and the plaintiffs appealed. Later, on motion of the defendants, it was ordered that judgment be entered for the defendants upon the demurrers.</p> <p>From the final judgment entered in pursuance of this order the plaintiffs appealed.</p>

<p>Contract by the owner of a motor car upon an alleged oral contract to insure the car against fire and theft from a date preceding March 9, 1915, when the car was stolen from the plaintiff and thereafter was destroyed partially by fire. Writ dated February 4, 1916.</p> <p>In the Superior Court the case was tried before Hall, J. At the dose of the plaintiff’s evidence, which is described in the opinion, the defendant rested, and thereupon by agreement of counsel the judge ordered a verdict for the defendant and reported the case for determination by this court, with the stipulation that, if the ordering of the verdict was right, judgment was to be entered for the defendant on the verdict; and that, if the verdict was ordered improperly, judgment was to be entered for the plaintiff in the sum of $3,600 with interest thereon from the date of the writ.</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 of $2 a week for five hundred weeks to or for the benefit of Jane Viola Beckles of Barbadoes, the partly dependent widow of Fitz Henry Beckles, who died from an injury received on January 14,1915, in the course, of and arising out of his employment when he was in the employ of the S. Vorenberg Company in Boston, and deciding that the injury -of the employee was not due to the serious and wilful misconduct of the employer or of any person regularly entrusted with and exercising the powers of superintendence.</p> <p>" The case was heard by Wait, J. The material facts are stated in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board. Both the claimant and the insurer appealed.</p>

Pour actions of tort for injuries respectively sustained by the plaintiffs on June 7, 1914, by being run into by an electric street railway car of the defendant on Broadway in Somerville when they were in a motor car which was owned and was being driven carefully by the plaintiff William C. Wentzell and which he had turned across the tracks to go into Irving Street, a connecting street on which the plaintiffs lived. Writs dated March 8, 1915.

<p>Judgment. Municipal Court of the City of Boston. Surety. Bond, To dissolve attachment. Practice, Ciml, Amendment.</p> <p>In the absence of fraud or collusion, a judgment entered against two defendants in the lawful exercise of the power of the court is conclusive against a surety upon a bond to dissolve an attachment given by one of the defendants.</p> <p>Accordingly, it is not a valid defence on the part of such surety in an action against him upon such a bond, that the judgment was entered before the time had expired for the filing of an answer by his principal’s co-defendant, who had been made a party defendant by an amendment after the giving of the bond.</p> <p>An amendment to the writ and declaration in an action against the maker of a promissory note', adding as a party defendant an indorser of the note, does not change the liability upon a bond to dissolve an attachment given by the first defendant before the allowance of the amendment.</p> <p>Therefore, the allowance of such an amendment without notice to the surety does not discharge such surety, and, after judgment against both defendants by default, the plaintiff may maintain an action upon the bond against such surety.</p>

<p>Negligence, Invited person, In raising ship. Agency, Scope of employment, Ratification, Existence of relation. Practice, Civil, New trial. Jury and Jurors.</p> <p>In an action by the owner of a motor boat against a lighter company for personal injuries caused by the giving way of apparatus of the defendant, which was being used to raise the stern of a tug owned by a third party while the plaintiff was beneath the stem with his boat carrying the tug’s engineer in order that the engineer might remove a hawser which had become entangled in the propeller, it is unnecessary for the plaintiff, in order to show that he rightfully was there, to show more than that he undertook to assist at the request of the captain of the tug.</p> <p>Upon a review of the evidence at the trial of the action above described, it was held that there was evidence warranting findings that employees of the defendant acted within the scope of their authority in undertaking at the request of the captain of the tug to hoist the stern of the tug for the purpose above described, and that, if their action in that regard originally was unauthorized, it afterwards was ratified by the company’s officers, who, with, full knowledge of the circumstances, presented and received payment of a bill for the work thus performed.</p> <p>In the action above described there was evidence which warranted findings that the defendant’s employees in hoisting the tug used a hook attached to the block</p> <p>' of a tackle holding a sling which had been passed under the stern of the tug and which was so worn, chafed and frayed that, when subjected to the strain necessary for the work, it gave way and the tug’s stern descended upon the plaintiff, and that this condition could have been ascertained and remedied by the exercise of reasonable diligence on the part of the defendant’s employees. Held, that a verdict for the plaintiff was warranted.</p> <p>If a juror during the trial of an action of tort on his own initiative privately takes a view of premises, the character of which is an issue at the trial, thus obtaining evidence outside of that introduced in the court room, such conduct does not require a new trial as a matter of law; and where, upon a motion for a new trial based upon such conduct of the juror, the trial judge finds, on evidence warranting the finding, that the conduct of the juror did no harm to the party against whom a verdict was rendered, the judge in his discretion may deny the motion.</p> <p>If the captain of a tug boat, in whose propeller a hawser has become entangled, while on his way to the wharf of a lighter company whose assistance he is to procure to raise the stem of the tug while the hawser is being disentangled, within the scope of his authority hails the owner of a motor boat and makes a contract with him to take aboard the tug’s engineer and, when the lighter company has the stem of the tug sufficiently elevated, to go with his boat beneath the stern while the tug’s engineer removes the hawser; and if, while the owner of the motor boat thus is under the stern of the tug, it falls and strikes the owner of the motor boat because a part of the apparatus negligently used by the lighter company is defective, the owner of the tug is under no liability to the owner of the motor boat for injuries thus received.</p>

<p>Bill in equity, filed in the Superior Court on January 16, 1917, in which the plaintiff averred that the defendant owed him the sum of $49,000 on account of salary; that in a suit in equity of the defendant against him a decree had been entered against him for $14,788 (see 225 Mass. 504); that the defendant did not have assets sufficient to pay its liabilities, and that the plaintiff feared that, if the sum ordered to be paid by the plaintiff to the defendant under the bill in equity above mentioned were paid to the defendant it would pay such sum in full to persons other than the plaintiff and thereby would reduce the sum which the plaintiff might obtain from the defendant upon the claim set up in this suit. The prayers of the bill were that the defendant be enjoined from prosecuting further its suit in equity against him, that the amount owed to the plaintiff by the defendant be established and its payment ordered, and that there be applied on account thereof the amount which the plaintiff was ordered to pay to the defendant in the previous suit. ,</p> <p>The suit was heard by Hardy, J. The material evidence at the trial and the findings of the judge are described in the opinion. At the close of the evidence, the plaintiff asked for and the judge refused to give the following rulings:</p> <p>"1. The directors had the power to appoint a supervisor.</p> <p>“2. The directors had power to fix the salary of a supervisor.” “7. There is no evidence of any fraudulent purpose on the part of the directors in connection with the vote of May 20, 1908.</p> <p>“8. There is no evidence that the vote of May 20,1908, was in any way concealed from the stockholders.”</p> <p>“10. The votes at the annual meeting of the stockholders in May, 1913, relating to the salary of McCormick had no effect on the validity of the vote of directors of May 20, 1908, or on the salary earned prior to said annual meeting.”</p> <p>The judge ordered a decree dismissing the bill. The plaintiff alleged exceptions, which, after the death of Hardy, J., were allowed by J. F. Brown, J.</p>

<p>Two actions of tort, the first to recover for the conscious suffering and death of Mary A. O’Neil, the plaintiff’s intestate, caused by her being struck on February 27, 1914, by a piece of ice which fell upon her from the defendants’ building numbered 37 and 39 North Street in Boston, as she was a traveller on the adjoining highway; and the second by the husband of the intestate for consequential damages. Writs dated June 5, 1914.</p> <p>The actions were tried together in the Superior Court before Stevens, J. In answer to special questions, the jury assessed the damages in the first action at $5,900, and in the second action at $315. The judge thereupon ordered verdicts for the defendants, ruling that the notice given to the defendants, as described in the opinion, was insufficient, and reported the actions to this court for determination of the correctness of that ruling, judgment to be entered in accordance with the findings of the jury if the ruling was incorrect; otherwise, judgment to be entered on the verdicts for the defendants.</p> <p>St. 1908, c. 305, as amended by St. 1913, c. 324, is as follows:</p> <p>“The provisions of sections twenty, twenty-one and twenty-two of chapter fifty-one of the Revised Laws, in so far as they relate to notices of injuries resulting from snow or ice, shall apply to actions against persons or corporations founded upon the defective condition of the premises of such persons or corporations, or of an adjoining way, whenever' such defective condition is caused by, or consists in part of, snow or ice. Leaving the notice with the occupant of said premises, or, in case there is no occupant, posting the same in a conspicuous place thereon, shall be a sufficient compliance with the foregoing provisions: Provided, however, that notice within thirty days after the injury shajl be sufficient; and if by reason of physical or mental incapacity it is impossible for the injured person to give the notice within thirty days after the injury, he may give it within thirty days after such incapacity has been removed, and in case of his death without having been for thirty days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give the notice within thirty days after his appointment. No notice shall be held to be invalid by reason of any inaccuracy or misstatement of the owner’s name if it appears that the same was made in good faith and did not prevent or unreasonably delay the owner from receiving actual notice of the injury and of the claim that it occurred from a defective condition of his premises.”</p>

<p>Tort for personal injuries alleged to have been received, while the plaintiff, an employee of the Jarvis Engineering Company, was at work on premises of the defendant, by reason of negligence of employees of the defendant in causing a chisel to fall upon him. Writ dated September 15, 1916.</p> <p>In the Superior Court the action was tried before Sanderson, J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor and asked for rulings which, with the disposition made of them by the presiding judge, were as follows:</p> <p>"1. The defendant as owner of the premises in question, owed to the plaintiff and the other employees of the Jarvis Engineering Company at the most only the same duty that the defendant owed to his own employees.” This ruling the judge gave in the ’ following form: “1. The defendant, as owner of the premises in question, owed to the plaintiff and the other employees of the Jarvis Engineering Company, as to the condition of its premises, the same duty that the defendant owed its own employees.”</p> <p>“2. If all the conditions surrounding the plaintiff were plainly to be seen if he looked, no duty was owed to the plaintiff by the defendant in any way to change the premises, nor any duty to warn or instruct the plaintiff.” This ruling the judge gave in the following form: “2. If all the conditions surrounding the plaintiff were plainly to be seen if he looked, no duty was owed to the plaintiff by the defendant in any way to change the premises, nor any duty to warn or instruct the plaintiff as to those conditions.”</p> <p>The jury found, in answer to a special question, that the plaintiff was injured by being hit by a chisel and not by a plank; and found for the plaintiff in the sum of $1,200. The defendant alleged exceptions.</p>

<p>Trust, Void for indefiniteness. Devise and Legacy, Validity.</p> <p>A will contained the following residuary clause: “All the remainder of my estate ... I give, bequeath and devise to my executors and trustees, in whose honesty and discretion I have reposed especial trust and confidence, for certain purposes which I have made known to them. And I hereby authorize and empower my said executors to make such distribution and division of my estate as I have indicated to them, and as they shall deem proper for the fulfillment of my wishes so well known to them relying entirely upon their judgment in the premises.” Held, that the residue was not given to the executors absolutely, but that a trust was attempted to be created, which was not for a charitable purpose and was wholly undefined, so that no valid gift was made and the residue was to be treated as intestate property.</p>

<p> Inspection of Buildings. Municipal Corporations. </p> <p>Under R. L. c. 104, § 22, providing that “No building which is designed to be used . . . as a . . . school house . . . shall be erected until a copy of the plans thereof has been deposited with the inspector of factories and public buildings for the district in which it is to be erected by the person causing its erection, or by the architect thereof,” and § 55 of the same chapter, imposing a penalty for the violation 'of the provisions of § 22, a contractor engaged in the erection of a school house is not required to file a copy of the plans, and his faitee to do so does not deprive him of any rights under the contract; and the issuing of a certificate of the inspector of factories and public buildings indorsed with the approval of the chief of the district police, which is mentioned in § 22, is not a condition precedent to recovery from the city by one who has supplied materials and labor for heating and ventilating the school house in accordance with his contract to do so.</p> <p>In such an action on a contract for heating and ventilating the school house building the fact, that the plaintiff knew that the inspector had disapproved the plans submitted for heating the building, does not deprive him of his right to recover, if he has performed fully the work required by the plans and the specifications in his contract and if the disapproval of the inspector related wholly to a defect in the work done by the general contractor for the building of the school house.</p>

<p>Tort against a railroad corporation under St. 1908, c. 463, Part I, § 63, as amended by St. 1907, c. 392, and St. 1912, c. 354, by the administratrix of the estáte of Warren A. Hix, late of Concord, for causing the death of the plaintiff’s intestate on October 9, 1913, when he in the employ of the defendant was engaged in making measurements on the face of a steep or vertical cliff -adjoining the defendant’s railroad property at Becket, by failing to provide a reasonably safe rope for the intestate to be lowered over the edge of the cliff for the purpose of making such measurements and to be hoisted up again. Writ dated October 2, 1914.</p> <p>The declaration contained three counts, the first alleging a failure to provide the plaintiff with suitable appliances and a defect in the defendant’s ways, works or machinery, the second alleging a failure to furnish the plaintiff with a sufficient number of reasonably careful and competent fellow servants, and the third alleging a failure to warn and instruct the plaintiff as to defects and dangers.</p> <p>In the Superior Court the case was tried before Wait, J. At the close of the plaintiff’s evidence, which is described in the opinion, the judge, at the request of the defendant, ruled that there was not sufficient evidence to go to the jury, and thereupon, by agreement of the parties, ordered a verdict for the defendant, and reported the case for' determination by this court, with a stipulation of the parties that, if there was any evidence which should have been submitted to the jury, judgment should be entered for the plaintiff in the sum of $2,000; otherwise, judgment was to be entered for the defendant on the verdict.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on April 6 and amended on October 8, 1917, containing, as amended, the allegations which are described in the opinion.</p> <p>The defendants demurred to the amended bill, and the case was heard on the demurrers by Fox, J., who made an order sustaining the demurrers. Later by order of the judge a final decree was entered dismissing the bill; and the plaintiff appealed.</p>

<p>Negligence, Contributory, Street railway.</p> <p>In an action against a corporation operating a street railway for personal injuries sustained (when St. 1914, c. 553, was in force) by being struck by the overhang of a car of the defendant' from which the plaintiff just had alighted, as the car turned at a right angle by means of a curve to go into a car barn at the end of its trip, there was evidence that the plaintiff had received a transfer check for another car of the defendant that was waiting a short distance ahead, that in response to a call from the conductor all the passengers had left the first car by the rear door, that the plaintiff was the last to alight, that as she stepped to the street an automobile came up and proceeded slowly at the plaintiff’s right as she walked along by the side of the car and about two feet from it, that she was about midway between the car and the automobile, that as soon as the plaintiff left the car it started to go to the car barn and, when the plaintiff had taken three or four steps, she was struck in the back by the overhang of the car as it swung round the sharp curve. The plaintiff had followed in the line of the other passengers. Her testimony as to whether she knew that the car was going to turn into the car bam was conflicting. Held, that, with the presumption created by the statute, a finding was warranted that the plaintiff was not negligent.</p> <p>In the case described above it had been held in a previous decision of this court reported in 225 Mass. 570, that the plaintiff at the time of the accident was not a passenger of the defendant and had only the rights of a person lawfully using the highway. There was evidence that immediately after the plaintiff alighted from the car the conductor closed the door and started the car to go to the car barn, that the car was a large pre-payment semi-convertible car, which in swinging round the curve would extend five feet and two and a half inches beyond the outer rail, that the conductor had given the plaintiff a transfer check and had reason to anticipate that in continuing her journey she would be alongside the car and would be prevented by the automobile from getting far enough away from the car to avoid being hit by it if it proceeded then to turn the comer to go to the car bam. Held, that it was a question for the jury whether the conductor was negligent in starting the car while the plaintiff was in such a perilous position and before she had an opportunity to reach a place of safety, without warning the plaintiff of the danger unappreciated by her to which she was exposed.</p>

<p>Jurisdiction. Comity. Conflict of Laws. Equity Jurisdiction, Of suit against foreign mutual insurance company. Insurance, Mutual life insurance company.</p> <p>The courts of this Commonwealth will not take jurisdiction of a suit in equity by a citizen of the Commonwealth against a mutual life insurance company, incorporated in the State of New York to determine the amount which should be paid by the plaintiff as premiums according to the provisions of a policy of insurance issued by the defendant, to restrain the defendant from declaring the policy forfeited and to compel it to accept a certain amount as full payment of premiums instead of a larger amount, fixed by a vote of the directors of the corporation and paid by the plaintiff under protest, where it appears that there are provisions of the policy under which it is renewable upon payment of advance premiums at the time and in the manner therein provided, “subject to the provision that, by action of the board of directors, the amount required for mortuary purposes may be raised to conform to the actual mortality experience of the” company, and that the policy must be construed according to the laws of the State of New York.</p>

<p>Bill in equity, filed in the Superior Court on May 15,1915, by the former pwners of land with buildings thereon on Coolidge Hill 1 Road in Watertown subject to a mortgage for $5,500 to the Cam- - bridge Savings Bank and to a second mortgage for $500 to the defendant Melkon, alleging that the mortgage for $500 was obtained by Melkon by fraud and fraudulent misrepresentations, that Melkon had caused it to be foreclosed by public sale, that the sale was undertaken and carried out by Melkon in bad faith without notice to the plaintiffs and that the property was sold to the defendant Arakil, who, in conspiracy with Melkon, purchased in bad faith. The prayers of the bill were for a determination of the validity of the mortgage to Melkon, a declaration of the invalidity of the foreclosure sale and, if the mortgage were proved to be valid, that the plaintiff might be permitted to redeem.</p> <p>The suit was referred to a master “to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.”</p> <p>The plaintiff filed twenty objections and exceptions to the master’s report. The twentieth exception was to the exclusion of the following testimony, offered by the plaintiffs in rebuttal on the issue whether the plaintiffs had notice of the foreclosure proceedings:</p> <p>The plaintiffs offered to prove in rebuttal, that Arakel Ananian, one of the plaintiffs., after he had received the newspaper from the witness Rugg, and on the same day, went to see one Caragulian at the latter’s home on Mount Auburn Street in Watertown, and that the said Caragulian would testify that Arakel Ananian did call on him on this particular Sunday with the newspaper given to Arakel by Mr. Rugg. That Arakel Ananian was in an excited and nervous state at the time; that Mr. Caragulian took charge of the matter. On the following day, which was Monday, he and Mr. Ananian consulted Mr. Sevasly, of counsel for the plaintiffs.</p> <p>The witness Rugg would testify that, sometime in the latter part of April, or early in May, he was passing by the building on Coolidge Hill Road and saw one of the plaintiffs watching the property. The witness said to the plaintiff, “What are you doing here?” The plaintiff answered, “I am watching the property.” The witness then said, “You are watching somebody else’s property because I see by the paper that it has been foreclosed.” The plaintiff then said that neither he nor his brother knew anything about it, and the witness told him to send his brother to him and that he would tell him all that he knew. On the following Sunday, which was a day or two after the conversation above set forth, Arakel Ananian, one of the plaintiffs, called to see the witness Rugg, and the witness informed him of the foreclosure. The witness looked for the papers in which the foreclosure notice had appeared. He found three copies of the newspaper, of which he gave one to Arakel Ananian. Arakel Ananian expressed surprise at what happened and said that he knew nothing about it.</p> <p>The exceptions were heard by Hardy, J., who filed a memorandum reading as follows: “The fourteenth exception is sustained. The master should have reported material facts as to the notice as stated in objection numbered 14. Other exceptions overruled.”</p> <p>An interlocutory decree accordingly was entered sustaining the fourteenth exception and recommitting the suit to the master as stated in the opinion. There was no appeal from this decree.</p> <p>From the findings of the master in his supplemental report, it appeared that the notice of the foreclosure sale stated: “Said premises will be sold subject to the amount unpaid on a prior mortgage of record of Fifty-five Hundred Dollars ($5,500.00), held by the Cambridge Savings Bank, and all unpaid taxes, liens and assessments,” and that at that time there was due on the prior mortgage $5,275. ’</p> <p>Thereafter the suit was heard upon the pleadings and the two reports of the master by Wait, J., and a final ,.decree was entered upon his order confirming the reports and dismissing the bill. The plaintiffs appealed.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to John Lawrence Hallett as the dependent husband of Gertrude O. Hallett, ■ who died on August 18, 1917, by falling at the top of a flight of granite steps leading to the store where she was employed as a bookkeeper by the S. K. Dexter Company, a corporation carrying on the business of a wholesale grocer at Lowell.</p> <p>The case was heard by Wait, J. The evidence on which the decision of the Industrial Accident Board was based is described in the opinion. The claimant testified that at the time of the accident his wife was twenty-eight years of age and “Her health was perfect. She worked every day. They grew up together; that he had known her for about fifteen years. During this time he had never known her to faint or be ill.” He also testified, in regard to the travelling bags that his wife was carrying, that “They were going on a vacation when she got through her work, and the bags were packed with this in view.” The employee was taken to a hospital where she appears to have died without regaining consciousness.</p> <p>The judge made a decree in accordance with the decision of the Industrial Accident Board that the “death of the deceased employee arose out of and in the course of her employment; and that the claimant, John Lawrence Hallett, the husband of the deceased, was wholly dependent upon her for his support, being conclusively presumed to be so by the statute, and is, therefore, entitled to a weekly compensation of $8.67 for a period of five hundred weeks from August 18, 1917, the date of the injury, said sum not, however, to exceed $4,000.” ■ The insurer appealed.</p>

Libel for divorce, filed on November 16, 1916, alleging as cause cruel and abusive treatment on the part of the libellee. The libel was heard by Dubuque, J., and a decree nisi was entered on January 26, 1917. On July 25, 1917, the libellee filed a document with the title “Objections to Entry of Absolute Decree,” which set out as “cause of such objections” the following: “1. That in the granting of said decree the court was misled and deceived. “2.

<p>Negligence, Employer’s liability, In use of electricity. Electricity. Evidence, Matter of conjecture.</p> <p>In an action against a street railway corporation by an experienced lineman for personal injuries sustained in the year 1907, when in the defendant’s employ, by falling from a pole by reason, as alleged, of coming in contact with the defendant’s telephone wires on a cross arm of the pole which had become charged with a dangerous current of electricity alleged to have passed to them from certain high tension wires maintained by the defendant on another cross arm on the same pole, it appeared that when the plaintiff went on the pole the current had been shut off from all the high tension wires, which thereby had been made “dead” so that the place was safe to work in, and there was evidence, introduced by the plaintiff, which, if believed, tended to show that afterwards the current had been turned on upon a part of the high tension wires, which in this way became alive and transmitted a part of the electricity to the telephone wires with which the plaintiff was said to have come in contact, but there was nothing to show how these wires became alive and it was a matter of pure conjecture by whose order the current was tinned on. Held, that there was no evidence of negligence for which the defendant was liable, it being equally probable that the defendant was not at fault or that the dangerous condition was caused by a fellow servant of the plaintiff for whose negligence the defendant was not legally accountable to the plaintiff.</p> <p>In the case above described it was said that, there being no evidence to show negligence of the defendant at common law or under the employers’ liability act, it had become unnecessary to consider the question of the due care of the plaintiff in failing to use a safety belt with which he was provided or other questions that had been raised at the trial.</p>

Contract for breach of an agreement for the sale of scrap iron to the plaintiff. Writ dated April 21, 1917. In the Superior Court the case was tried before King, J. The material evidence and the only exception relied on by the defendant are described in the opinion. There was a verdict for the plaintiff in the sum of $3,721.73; and the defendant alleged exceptions.

<p>Bailment. Bank. Will, Custody of.</p> <p>"Where one, who has hired a safe deposit box from a national bank and who also has a deposit account in the bank, leaves with the officials of the bank a tin box, without disclosing its contents, which is placed in a bank vault where books and records are stored, the bank does not become the bailee of a will of the depositor contained in the tin box.</p> <p>Whether the remedy for the failure of a person having custody of a will to deliver such will into the Probate Court, which is given by R. L. c. 135, § 14, “to a person who is aggrieved for the damage sustained by him by reason of such neglect,” is an exclusive remedy, here was referred to as a question that was not passed upon.</p> <p>It here was assumed for the purposes of decision, that an administrator de bonis non with the will annexed was the proper party to sue for damages suffered by the negligent withholding of the will.</p> <p>Whether under the national bank act and before the passage of the federal reserve bank act, U. S. St. 1913, c. 6, § 11 k, a national bank had authority to accept a will for safe keeping and would be legally liable for a failure to deliver according to directions a will thus accepted in custody, here was referred to as a question which it was unnecessary to consider.</p>

<p>Tort for personal injuries and death of the plaintiff’s intestate alleged to have resulted from a barrel falling upon him when, as an employee of the defendant, he was loading it on to a truck. Writ dated June 28, 1916.</p> <p>In the Superior Court the case was tried before Hall, J. The injury was received on July 3, 1915. He died on December 12, 1915, of cancer, and there was conflicting evidence on the question whether his death was caused by his injury. Other material evidence is described in the opinion. At the close of the evidence the defendant moved that a verdict be ordered in its favor. The motion was denied. The jury found for the plaintiff in the sum of $5,700; and the defendant alleged exceptions.</p>

<p>Contract, Performance and breach.</p> <p>In an action for breach of a contract to manufacture and deliver to the plaintiff one hundred and fifty dozen of Shaker knit sweaters of seven specified styles for about $9,000 in all, in which the defendant relied on the defence that he was warranted in cancelling the plaintiff’s order by reason of a breach of the contract on the part of the. plaintiff, it appeared that before undertaking this contract the defendant had had no dealings with the plaintiff and knew nothing of his financial ability, that the goods to be manufactured for the plaintiff were of a special kind not commonly found on the market, that the work necessitated a considerable outlay for stock and labor and that the defendant was not to be paid for several months, that when the defendant took the order he told the plaintiff that “if he did not live up to his agreement the defendant would drop it,” that the contract afterwards was modified by an agreement to include in it orders for eight white and twenty green sweaters to be made and delivered at once, that these twenty-eight sweaters were made and delivered promptly and payment, when due, was demanded, the price amount- ■ ing to $127.50, that about a month after the payment became due the plaintiff paid $123.67 and about three weeks later paid the balance of $3.83, that in response to a request for payment nine days before the first payment was made the plaintiff had written, “I will send check now within a very few days. Weather conditions up in this part of the country during April have been frightful, putting business and collections in very bad shape,” and that at the time of his first payment the plaintiff wrote “with reference to these first small invoices, I laid them out nearly three weeks ago for payment and through an oversight they became mislaid,” and in paying these bills when long overdue the plaintiff deducted the discount to which he would have been entitled only on making the payments promptly. The judge, who heard the case without a jury, found that ■ the plaintiff broke his contract in failing to pay for the twenty-eight sweaters when the price was due and ruled that this breach of contract was important enough to excuse the defendant from further performance of the contract on his part. Accordingly the judge found for the defendant. Held, that the finding of the judge, which was in substance that the promise of prompt payment for goods as delivered was an essential inducement to the defendant to enter into the contract, was warranted and that upon this finding his ruling that the plaintiff’s breach went to the root of the contract and justified the defendant in cancelling the rest of the order was correct.</p>

Contract on an account annexed for a balance of $228.62 alleged to be due for the price of goods sold and delivered by the plaintiff to the defendant. Writ in the Municipal Court of the City of Boston dated January 24, 1916.

<p>Bill in equity, filed in the Superior Court on September 6, 1917, containing the allegations which are described in the opinion, and praying that the defendant Greenburg be enjoined -from assigning or foreclosing the mortgages held by him upon certain real estate on Western Avenue in Lynn in which the plaintiff claimed an undivided third interest subject to certain mortgages, that a receiver be appointed to collect the rents and profits of the mortgaged real estate and to conduct the business of theatrical entertainments and moving picture exhibits in a building on the real estate, that an account be taken of the principal and interest due on each of the mortgages to which the real estate was subject, that an account be taken of the rents and profits of the real estate and of the sums received by the defendants Greenburg and Standard, and that the plaintiff, on paying to the defendants such sums as they might be entitled to under their mortgages, should be given possession of the premises discharged from the mortgages, and for further relief.</p> <p>The fifteenth paragraph of the bill, held by this court to be bad ' for indefiniteness, was as follows:</p> <p>“15. The plaintiff avers that there is a mutual agreement by and between the plaintiff and the defendants Greenburg and Standard to the effect that, whatever title in said real estate either by way of mortgage or otherwise any of said partners has, shaíl be considered first as security for the sums that have been advanced by them respectively in the purchase of said real estate, or in carrying on said business, and for services performed in connection with said business, and secondly as belonging to said partners in the proportion of one third to the plaintiff and two thirds to the defendants Greenburg and Standard.”</p> <p>Each of the defendants demurred to the bill, alleging, first, want of equity, second, multifariousness and, third, demurring specially to the fifteenth paragraph of the bill as indefinite and inadequate.</p> <p>The case was heard on the demurrers by Wait, J., who made an order sustaining the demurrers with leave to the plaintiff to amend his bill within ten days, and, the plaintiff having made no amendment of his bill within that time, by order of the judge a final decree was entered dismissing the bill. The plaintiff appealed.</p>

<p>Two actions op tort, the first action being for personal injuries received by a daughter, two and one half years of age, of the plaintiff in the second case, when she was struck by an electric street car operated by the defendant on Sea Street in Quincy, and the second action being by the father for consequential damages. Writs dated August 10, 1916.</p> <p>In the Superior Court the actions were tried together before Jenney, J. The material evidence is described in the opinion.</p> <p>At the close of the evidence the defendant moved that a verdict be ordered in its favor. The motion was denied. The defendant then asked for rulings in substance that, upon all the evidence the plaintiff was not entitled to recover, and that there was no evidence that the motorman of the car was negligent. The rulings were refused. The jury found for the plaintiff in the first action in the sum of $6,250, and for the plaintiff in the second action in the sum of $8,800. The defendant alleged exceptions.</p>

<p>Contract or tort, by the administrator of the estate of Sarah L. Harrington, late of Watertown, the mother of the plaintiff and of the defendant, the declaration being in one count for money “received and borrowed” by the defendant. Writ dated July 22, 1915. . ‘</p> <p>In the Superior Court the action was tried before Quinn, J. The material evidence is described in the opinion. At the close of the evidence, on a motion by the defendant, the judge ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for personal injuries received when the plaintiff, twelve years of age, was upon a pedler’s wagon of the defendant and in his employ, and caused by alleged negligence of the defendant in starting the wagon. Writ dated November 9,1916.</p> <p>In the Superior Court the action was tried before Lawton, J. The material evidence is described in the opinion. At the close of the evidence the defendant moved that a verdict be ordered for him. The motion was denied and there was a verdict for the plaintiff in the sum of $150. The defendant alleged exceptions.</p>

<p>Statute, Construction. Constitutional Law, Due process of law. Negligence, Contributory negligence. Evidence, Opinion: experts, Presumptions and burden of proof. Practice, Civil, Ordering verdict, Exceptions.</p> <p>A statute must be interpreted according to the intent of the makers, to be ascertained from its several parts and all its words, construed by the ordinary and approved usage of the language, unless the words used have acquired a peculiar meaning in the law, considered in connection with the cause of its enactment, the subject matter to which it applies, the pre-existing state of the common and statutory law, the mischief or imperfection to be remedied, and the main object to be accomplished, to the end that it be given an effect in harmony with com- ' mon sense and sound reason.</p> <p>The provision of St. 1914, c. 553, § 1, that “In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care,” was intended to change the rule of law previously in force, requiring, in actions for injury to person or property through negligence, that the plaintiff should prove his due care as an affirmative proposition either by direct evidence or as a fair deduction from facts established by evidence, and, in actions for the negligent causing of death, that the decedent should be shown to have been actively and actually in the exercise of due care for his own safety; and to establish the presumption that, normally, people exercise due care and are not guilty of contributory negligence, and that the plaintiff in a specific . action was so acting; but the statute was not intended to deprive the defendant of a full opportunity to prove by a preponderance of evidence that the plaintiff was not acting in accordance with such presumption.</p> <p>The further provision of the same section of the statute, that contributory negligence on the part of a person, who has been so injured or killed or whose property has been damaged, “shall be an affirmative defence to be set up in the answer of, and proved by the defendant,” merely shifts from the plaintiff the burden of alleging and proving by the preponderance of the evidence his due care or the due care of his decedent as part of his affirmative case and requires the defendant, if he would rely on the defence that the plaintiff or decedent was wanting in due care and that such y ant contributed to cause the injury or death, to allege it as an affirmative defence and to prove it by a preponderance of the evidence.</p> <p>St. 1914, c. 553, § 1, does not change the substantive law of negligence. The tribunal hearing an action of tort for personal injuries or death alleged to have been caused by negligence still must be satisfied on all the evidence that the plaintiff or the decedent was in the exercise of due care and did not by his own acts of omission or commission help to produce his injury or death, and that the defendant was negligent.</p> <p>The provisions of St. 1914, c. 553, §. 1, do not require necessarily that in every action therein described, when tried before a jury, the due care of the person who was injured or damaged or whose death was caused becomes a question of fact which must be submitted to the jury; but, where from facts, which are undisputed or indisputable or are shown by evidence by which the plaintiff is bound, only one' rational inference can be drawn and that is an inference of contributory negligence or want of due care, then the question of due care or contributory negligence is one of law for the court and a verdict for the defendant should be ordered.</p> <p>The provision of § 2 of the above statute, repealing all acts and parts of acts inconsistent with § 1, is ancillary to the chief object of the statute and is not in itself in any way unconstitutional.</p> <p>St. 1914, c. 553, as above construed, does not contravene any provision of the Constitution of the Commonwealth or of the Fourteenth Amendment to the Federal Constitution.</p> <p>The inference of due care on the part of the plaintiff or decedent in the actions described in the above statute, which by the statute is made a presumption of fact, is not arbitrary nor irrational.</p> <p>At the trial of an action against a street railway company for personal injuries alleged to have resulted from the plaintiff being thrown from a street car of the ' defendant by reason of his hold being broken as the car moved rapidly over a poor track, it was error to permit a consulting engineer for electric railway companies, testifying as an expert for the plaintiff, to answer a hypothetical question which contained as hypotheses a statement of all the facts relating to the accident which the plaintiff contended the evidence showed, and concluded, “ What would you say was the cause of the accident? ” the determination of such a question being for the jury on the evidence and not requiring the aid of expert testimony.</p> <p>An exception to the admission of the testimony above described was overruled as not having injuriously affected the substantial rights of the defendant, since it appeared that the testimony was merely cumulative upon other evidence to the effect that the track was uneven and that the car would lurch going over it so as to throw down a person standing between the seats, the defendant’s contentions, supported by a considerable body of evidence, being that the plaintiff attempted to get off the car while it was in motion.</p>

<p>Insurance, Liability. Practice, Civil, Charge to jury, Requests and instructions. Attorney at Law.</p> <p>At the trial of issues framed in a suit in equity brought by an insurance company against one, insured by it against liability arising from accidents in which his motor vehicle was involved, and an attorney at law alleged to have been in collusion with the insured to defraud the plaintiff, to enjoin the insured from maintaining an action »f contract upon the policy, a material question was, whether the insured, by false testimony and by fraud either alone or in collusion with the attorney at law and a person injured in a collision with the insured’s motor vehicle, had defrauded the insurance company. There was evidence tending to show that the defence of various actions by the injured person against the insured had been wholly in the charge of attorneys employed by the insurance company and that the insured had not consulted nor retained counsel of his own therein; that the attorney, who was the person alleged by the company to have been in collusion with the insured to defraud the company, represented the insured in various matters not related to the litigation as to the accident caused by the motor vehicle, and finally took charge of the action of the injured person against the insured, and also was the insured’s attorney in the action upon the policy against the company. The judge presiding at the trial charged the jury in substance that the attorney had a legal right to represent the insured in matters unrelated to the action against him by the person who was injured in the collision with the motor vehicle and to represent the injured person in that action; that “we are not dealing with the question of propriety or impropriety here. We are dealing simply with legal questions in this case, and I don’t say that it was proper or that it was improper. I simply say that it wasn’t illegal.” Held, that there was no error in the charge.</p> <p>It also was held that the instructions above quoted did not preclude the jury from considering the propriety of the attorney’s appearance in the case or any inference of collusion therefrom.</p> <p>It further was held that it was not fairly open to the plaintiff to argue as to such instructions that “the stamp of approval given by the court as a matter of law to the action of” the attorney "prevented the jury from considering this very vital element [of collusion] in passing upon the contentions of the plaintiff.”</p> <p>An exception to the conduct of the judge presiding at a trial of the issues in the suit above described, in reading to the jury at the close of his charge requests previously presented to him by one of the parties, with comments upon them as he read them, instead of covering the subject matter of the requests in the course of his charge, was overruled.</p>

<p>Practice, Civil, Judge’s charge, Exceptions. Negligence, Contributory, Employer’s liability.</p> <p>In an action against a street railway corporation for personal injuries sustained, before the passage of the workmen’s compensation act and St. 1914, c. 553, when the plaintiff was working for the defendant in a sand pit, into which a track of the defendant at a grade of fifteen per cent was laid for the purpose of towing out fiat cars loaded with sand, by reason of being struck by such a loaded sand car that was being towed by an electric car which, having failed to reach the top of the grade pulling the heavy load, was slowly backing down, it op-' peared that the plaintiff and two fellow workmen were leaving the pit and were taking their tools to a box near the crest of the hill, going on the track which was the only available way, that, as the car approached, one of the plaintiff’s fellow workmen stepped off the track to the right and, the other to the left but that the plaintiff remained on the track and was struck by the sand car. A witness for the plaintiff testified that the plaintiff "was looking at the ties, for there were some of them uncovered.” The presiding judge in his charge to the jury said, “It is said on the part of the defendant that his [the plaintiff’s] head was down. There was some evidence introduced tending to show that his head was down; that he was looking at the sleepers.” When at.the close of the charge the judge’s attention was called to this statement, he said to the jury, “If you understood the evidence was different, you will rely upon your own recollection of the evidence. I have told you time and again not to rely upon my understanding, but upon your own recollection.” Later he said, without objection from the plaintiff, “In the first place, what is the fact? Did he go with his head down, or did he go looking up? If he went looking up, must he necessarily have seen the car or known that the car was coming? If he was looking down, and not looking for a car, was he justified in not looking for a car on account of there being no danger that he had any reason to anticipate? ” The jury found that the plaintiff was not in the exercise of due care, and the plaintiff alleged exceptions to the first statement of the judge quoted above. PM, that the statement of the judge seemed to be warranted by the evidence; and that, in any event, the judge was careful not to impose his recollection of the evidence upon the jury and that the exceptions must be overruled.</p> <p>In the same case the plaintiff excepted to a statement in the judge’s charge, “Now suppose you find he was not in the exercise of due care, that is the end of the case; he-cannot recover.” Peld, that the exception must be overruled; because, if tixe plaintiff could have avoided the accident by stepping from the track as his companions did, his failure to do so was the direct cause of his injury; and, assuming that the motorman could have avoided the accident by stopping the car after he saw the plaintiff, his failure to do so, if negligent, would have been the negligence of a fellow servant.</p>

<p>Negligence, Contributory. Motor Vehicle.</p> <p>In an action of tort for personal injuries, where the defence of contributory negligence is set up in the answer and the evidence shows that the plaintiff necessarily must have been negligent, St. 1914, c. 553, does not require the submission of the case to the jury.</p> <p>In four actions of tort against a street railway corporation for personal injuries sustained by being run into by an electric street railway car of the defendant when the plaintiffs were travelling in a motor butcher cart driven by one of them, who was its owner, the other three being his guests and all four sitting on one seat, it appeared that the plaintiffs were moving slowly, having started just before the accident from the dooryard of a farm house where the motor cart had been standing facing the defendant’s track. When it started they were about twelve feet from the nearer rail of the defendant’s track and each of them testified that he or she realized the danger and each one was on the lookout for a street railway car. Each of the guests testified that she was not relying on the owner, who was driving the motor cart, but was exercising care for herself. Each of the plaintiffs testified that he or she looked in the direction from which the defendant’s street railway car came and saw nothing. But the circumstances of the collision showed that the approaching car of the defendant was in the plain field of vision of each of the plaintiffs for a sufficient period of time to have enabled the owner of the motor cart to have stopped it in time to avoid the collision if any one of the plaintiffs had seen and spoken of the danger. Held, that it was an irresistible inference of fact, that, if any of the plaintiffs had seen the defendant’s car and had acted with reasonable prudence in giving the alarm, the accident could have been avoided, and that the only reasonable conclusion was that the negligent conduct of each of the plaintiffs helped to bring on the accident, so that a verdict rightly was ordered for the defendant in each of the cases.</p> <p>In the cases above described it appeared that at the time of the accident the license to operate a motor vehicle which had been granted to the plaintiff who owned and was operating the motor cart had expired and had not been renewed, and it was held that, although the absence of an operating license was some evidence of negligence on the part of this plaintiff in operating the car, it was not conclusive and did not warrant the ordering of a verdict for the defendant as against that plaintiff, and, in deciding on other evidence that all the plaintiffs were negligent as matter, of law, this court did not consider as an element the absence of an operating license.</p>

<p>Tort by the tadministratrix of the estate of Joseph Mercier under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, for causing the instant death of the plaintiff’s intestate at about a quarter past eleven o’clock on Saturday night May 20, 1916, at Howland’s Crossing in Westport when the intestate had alighted from an electric street railway car of the defendant on which he had been a passenger and was crossing the parallel track of the defendant, where he was struck by another car of the defendant coming from the opposite direction. Writ dated June 14, 1916.</p> <p>In the Superior Court the case was tried before Morton J. The evidence is described in the opinion. At the close of the evidence, on a motion filed by the defendant, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions. At the request of the plaintiff, against the objection and subject to the exception of the defendant, the judge allowed, as a matter of right and not of discretion, the insertion in the bill of exceptions of a 'statement of the defendant’s counsel’s opening to the jury.</p> <p>In the course of the trial one Robinson, called as a witness by the defendant,- testified that he was a passenger on the car that struck the plaintiff’s intestate and “that the car was going at about the regular speed that it usually runs; that he could not tell just how many miles an hour it was going.” On cross-examination he testified “that it was going at what seemed to him about the usual speed.” He then was asked, “Don’t you know that the usual speed there is forty miles an hour ? ” The judge excluded the question and the plaintiff excepted.</p> <p>St. 1914, c. 553, is as follows:</p> <p>“Section 1. In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed- to have been in the exercise of due care, and contributory negligence on his or her part shall be an affirmative defence to be set up in the answer of, and proved by the defendant.</p> <p>“Section 2. All acts and parts of acts inconsistent herewith are hereby repealed.</p> <p>“Section 3. This act shall take effect upon its passage, but shall apply only to actions or causes of action hereafter accruing.</p> <p>“ Approved May 21, 1914.”</p>

<p>Equity Pleading and Practice, Master’s report. Equity Jurisdiction, For an accounting, Fraud. Trust, Fiduciary relation of agent or employee. Agency,</p> <p>i Duty of fidelity.</p> <p>Where a suit in equity is referred to a master under a rule directing him “to hear the parties and their evidence, to find the facts, and report the same to the court,” the master has no authority to transmit to the court at the request of one of the parties certain portions of the evidence which the master "has refused to make a part of his report, and, where in such a case portions of the evidence are transmitted by the master without an order of court directing it, they cannot be considered.</p> <p>In a suit in equity, by a dealer in white and manila paper against the former manager of the plaintiff’s manila department and a corporation of which he had obtained control at the time that he severed his connection with the plaintiff, for an accounting, on .findings made by a master it was held that the individual defendant had violated no duty to the plaintiff in regard to the plaintiff’s manila department, that the parties understood that their contract was, about to be terminated at a fixed date for which arrangements were being made, and that the individual defendant rightfully could seek employment elsewhere or negotiate for other business connections for his own sustenance, protection and advantage, and that, in view of the findings of the master, it could not be said that a certain paper bag company, for which the plaintiff had held the exclusive agency in a defined territory, in exercising its legal right to make the defendant corporation its exclusive agent in that territory was- induced to cancel the plaintiff’s agency through the individual defendant’s unlawful procurement, that there was no evidence to support the allegations of fraud, conspiracy and breach of fiduciary duty contained in the plaintiff’s bill and that the bill should be dismissed as against both defendants.</p>

<p>Appeal from a decree of the Probate Court for the county of Norfolk allowing the first account of the executors-of the will of Chauncey S. Churchill, late of Dedham.</p> <p>The case was heard by Loring, J., who reserved and reported it for determination by the full court as follows: “The facts of the case were that the deceased transferred property which was in fact his own to himself as executor of the will of his .mother. The amount of property so transferred was not agreed upon but it was agreed that the property so transferred amounted to at least $50,-000. The executors did not transfer or otherwise give to the widow of the deceased any of that property. They did not give to the widow of the deceased any of that property because by the terms of the will of the deceased the bequest to the widow was ‘ one third of the property, both real and personal, belonging to me and standing in my name.’ I was of opinion that as matter of description the property so transferred by the deceased was not within the legacy thus given by the deceased to his widow and that the decree allowing the account would have to be affirmed, but I stated to counsel that I would reserve the case (without making a ruling) for the consideration of the full court. When the time came for settling the terms of the reservation the appellant wished me to make findings of fact which had to do with a claim made by the appellant that the transfer of this property was fraudulent. I am of opinion that there is no question of fraud involved in the appeal in question. I dislike to make findings of fact on an issue which has not been formulated and which in my opinion is not on trial. If the appellant wishes to raise the question of fraud I am of opinion that he must bring a bill in equity charging that the transfer was made by fraud and that the residuary legatees of his will cannot claim to hold property which comes to them in part under that fraud. Whether such a bill can be maintained in law and whether, if it can be maintained in law, the appellant can in fact make out the necessary allegations of such a bill is not a matter before me and one on which I do not undertake to express a final opinion. Under these circumstances I have come to the conclusion that the best way of administering justice in this appeal will be by entering now nunc pro tune an order appointing the stenographer who took the evidence commissioner to report the testimony and accordingly I have entered such an order. I now reserve the case for the consideration of the full court upon the appeal (including the record of the proceedings in the Probate Court), the objections of the appellant to the decree appealed from and the evidence taken by the commissioner including all exhibits introduced in evidence before me relating to the estates of Permelia S. Churchill and Chauncey S. Churchill. I also reserve for the consideration of the full court my power to take the action taken by me above, including the making of this reservation.”</p>

<p>Two actions of tort, the first for personal injuries received when the plaintiff, a girl then six years of age, was crossing North Main Street in Providence, Rhode Island, from the easterly to the westerly side and was struck by a motor vehicle of the defendant going in a northerly direction. The second action was by the father of the plaintiff in the first for consequential damages. Writs dated June 1, 1915.</p> <p>In the Superior Court the cases were tried together before Keating, J.</p> <p>The material evidence is described in the opinion. At the close of the evidence the defendant moved that verdicts be ordered for it in both actions. The motions were denied. The defendant asked for no specific instructions. The jury found for the plaintiff in the first action in the sum of $12,500 and for the plaintiff in the second action in the sum of $1,000. Motions for a new trial were filed by the defendant, as described in the opinion. In the second action, the plaintiff remitted all but $200 of the verdict. The motions then were denied. The defendant alleged exceptions.</p> <p>A supplemental brief filed by the defendant in this court stated, among other things, that “The defendant does not contend that the jury could not have found the defendant’s chauffeur negligent.”</p>

<p>Two actions of tort for personal injuries received by the plaintiffs while in the employ of the defendant Harry D. McIntosh Company on February 19, 1912, (before the workmen’s compensation act took effect) with a declaration, as amended, containing a count at common law and a count under the employers’ liability act. Writs dated May 29 and July 12, 1912, respectively; also</p> <p>Two actions OF tort, originally against Anthony D. Hall, George B. Hall, Frank G. Hall and George Gardner Hall, but before trial discontinued against all the defendants excepting George Gardner Hall, by the same employees of the defendant in the actions above described, for the same injuries, the declarations alleging that the injuries resulted from negligence of the defendant or his employees in directing the plaintiffs, while working for their employer in repairing a ceiling in the Adams House for the defendant, to go upon and use a defective staging, which broke. Writs dated December 19,1912, and August 17,1914, respectively.</p> <p>In the Superior Court the four cases were tried together before Bell, J. The material evidence is described in the opinion.</p> <p>At the close of the plaintiffs’ evidence, the defendant Harry D. McIntosh Company rested, and no further evidence was admitted as bearing on the first two cases. At the close of all the evidence the judge on motion of that defendant ordered a verdict for it; and the plaintiffs alleged exceptions.</p> <p>At the close of all the evidence the judge denied a motion of the defendant Hall that a verdict be ordered for him. The jury found for the plaintiff Cutcliffe against the defendant Hall in the sum of $5,000; and for the plaintiff Wood against the defendant Hall in the sum of $3,600. The defendant Hall alleged exceptions.</p>

<p>Contract upon an oral agreement by Louisa H. Schubeler, the defendant’s testatrix, to pay to the plaintiff $1,000 for professional services rendered and to be rendered to her as her attorney by bequeathing that amount to him in her will. Writ dated October 4, 1915.</p> <p>In the Superior Court the action was tried before McLaughlin, J. The material evidence is described in the opinion. At the close of the evidence by order of the judge the jury returned a verdict for the defendant. The plaintiff alleged exceptions.</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 McCarthy, for an injury received by him on August 2, 1917, when in the employ of the town of Danvers, at the rate of $11.25 a week from August 12, 1917, the eleventh day after his injury, to December 18, 1917, the date of the hearing, amounting to $205.71 and also a weekly compensation of…

<p>Negligence, Railroad, At grade crossing. Grade Crossing. Motor Vehicle. Evidence, Presumptions and burden of proof.</p> <p>The fact that a railroad corporation, without being ordered so to do by the railroad commissioners or the public service commission under St. 1906, c. 463, Part II, § 151, voluntarily assumed the duty of maintaining a bell operated by an electrical appliance to warn the public against the danger of cars and engines approaching a grade crossing of the railroad with a highway, does not warrant an inference that it also assumed the duty of so warning the public against the danger of collision with a car standing still on the track at the crossing at night, or that the mechanism was intended for that purpose.</p> <p>In actions by the driver of and a passenger for hire in a motor car which in the night time collided with a car of a train so standin'g across a highway, where it appeared that the electric bell was not ringing to warn the plaintiffs as they approached and that the time that the train had been so standing was not more than five minutes, there is no evidence of negligence of the defendant.</p>

<p>Negligence, Of one owning or controlling real estate. Evidence, Presumptions and burden of proof. Release. Contract, In writing, Construction. Agency, Existence of relation, Scope of employment.</p> <p>At the trial of an action by a woman against the owner of a building in a city for personal injuries alleged to have been received when a piece of ice fell from the building upon the plaintiff, the plaintiff testified in direct examination that the ice fell from the building. Later she testified that it fell from the roof and was about a foot long and from four to five inches wide and from four to five inches thick. On cross-examination she testified that she did not know where the ice came from. Held, that it was for the jury to choose between these contradictory statements, and that a finding was warranted that the ice fell from the roof of the defendant’s building.</p> <p>In the foregoing action it was admitted that, although parts of the defendant’s building were rented to tenants, the roof was under the defendant's care and control, and it was held that, if the jury found that ice of the size described by the plaintiff came from the roof and struck the plaintiff, they would be warranted in finding for the plaintiff.</p> <p>At the trial of an action for personal injuries from being struck on the head by a piece of ice falling from a building of the defendant, there was evidence that the same piece of ice damaged the plaintiff’s muff, that the superintendent of the building sent the plaintiff with the janitor to a lawyer’s office, where the plaintiff first was offered $2 “ for the damage done her muff; ” that after further talk $5 was paid, that before receiving this amount a release of all demands was drawn up in duplicate by a young woman in the office who, when she presented it to the plaintiff for her signature, said it was a “receipt for $5 for damage to her muff,” and that the plaintiff, relying on that representation, signed the release.</p> <p>The defendant produced both duplicate originals of the release and relied upon them. Held, that the jury were warranted in finding that the representations as to the releases were made and that they were binding upon the defendant; and that the release therefore did not bar the action.</p>

<p>Negligence, Of dealer toward customer.</p> <p>If one going to buy fish from a wholesale dealer on a fish pier is locked in the fish dealer’s refrigerator through the negligence of one of the dealer’s servants acting within the scope of his authority and thereby suffers injury, he has a cause of action against the fish dealer.</p>

<p>Equity Pleading and Practice, Master’s report. Pules of Court. Evidence, Of value. Interest. Equity Jurisdiction, For an accounting. Damages, In equity. Law of the Case.</p> <p>An objection at a hearing before a master in a suit in equity to the admission of certain evidence cannot be made the foundation of an exception to the master’s report on the ground of his admission of the evidence, if the party attempting thus to except to the master’s report failed to file an objection in writing as required by Equity Rule 31 after notice of the preparation .of the master’s draft of his report.</p> <p>Where a suit in equity for an accounting was referred to a master to ascertain the value of the stock of a certain corporation at a certain date, the master against objection, for the purpose of showing the value of the stock at that date, admitted evidence showing the earnings of that corporation for the three years succeeding the date in question and ruled “that he was entitled to consider all the facts reported .to him, considering subsequent events so far and so far only as they serve to indicate the true worth of elements of value actually existing on” the day in question. No objection in writing to the master’s report on account of the admission of this evidence was filed as required by Equity Rule 31, so that an exception to the master’s report on this ground could not be considered, but it was said that the objecting party was not harmed by the ruling of the master.</p> <p>Although the general rule in equity as at law is to allow only simple interest by way of damages, yet compound interest sometimes is allowed, and in the present case, where the defendant had been ordered to account for the value of certain stock at a certain date and the case was referred to a master to ascertain the value of the stock at that date, it was held that a ruling of the master was not erroneous, that interest should be computed “from the date of settlement to the date of the filing of the bill, with a rest as of the date of filing the bill and interest thereafter on the principal so ascertained” to the date of the decree.</p> <p>In the case above described a decision of this court at a previous stage of the same case had ordered that, in the accounting, interest should be allowed on . the whole amount due to the plaintiff “from the date of settlement to the date of filing the bill,” and it was pointed out that this was the law of the case.</p>

<p>Tort by the administratrix of the estate of Daniel J. ICenneally, late of Boston, to recover for the death and conscious suffering of the plaintiff’s intestate on September 27, 1911, when he was employed-by the defendant as a longshoreman, the declaration containing two counts, the first alleging negligence of a superintendent and the second alleging a defective condition of the ways, works or machinery of the defendant. Writ dated May 14, 1912.</p> <p>In the Superior Court the case was tried before Sanderson, J. The evidence is described in the opinion. At the close of the evidence the judge ruled that the action could not be maintained and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability. Evidence, Opinion: experts.</p> <p>In an action by a workman for personal injuries sustained, before the workmen’s compensation act took effect, when the plaintiff was in the employ of the defendant and with other employees of the defendant was engaged in moving a hot water heater over a concrete floor in the defendant’s factory, by reason of one of the legs of the heater coming out from the groove in which it was fitted, and causing the heater to fall on the plaintiff, it appeared that the heater was five feet in height and about two feet in diameter and weighed about nine hundred pounds, that it was supported on three iron legs twelve or fifteen inches high, which were attached to the heater by fitting into grooves on its under side in the manner that legs ordinarily are attached to a kitchen stove, that the plaintiff never had had any experience in moving heaters or stoves, that he came to this country from Ireland and went to work for the defendant the month after that of his arrival, that at his home in his native country there were no stoves, fireplaces being used for heating, that before the accident he never had seen the legs of a heater and did not know how they were fastened. He testified that they “appeared to be all one casting.” Another employee of the defendant testified that it appeared to him as if the legs of the heater were all one casting and that he did not discover that the legs were attached by grooves until after the accident. Held, that upon this evidence it could not have been rilled as matter of law that the danger connected with the work was so obvious that the plaintiff assumed the risk of injury and that, whether he was in the exercise of due care and whether he assumed the risk, were questions of fact for the jury.</p> <p>In the case above described a man of experience in handling heaters, called by the plaintiff as a witness, testified as an expert, subject to the defendant’s exception, that the method adopted in moving the heater was improper, and that a proper method would have been to remove the legs first and then by means of rollers and skids to slide or roll the heater along the floor. Held, that it could not be said that the proper way to do the work was so familiar to men of ordinary intelligence and understanding that expert testimony would not be instructive, and that the evidence was competent.</p> <p>In the same case it also was held that on the evidence above described the question, whether the defendant was negligent in the method adopted in doing the work and in failing to warn the plaintiff of the serious consequences that might follow if the legs suddenly were pulled away from the heater or slipped out of the grooves, was one of fact for the jury.</p>

<p>Tax, On legacies and successions. Trust. Partnership, In real estate trust.</p> <p>Under St. 1909, c. 490, Part IV, § 1, as amended by St. 1916, c. 268, § 1, which imposes a legacy and succession tax on “all real estate within the Commonwealth, or any interest therein, belonging to persons who are not inhabitants of the Commonwealth, which shall pass by will,” shares of a real estate trust, the general scheme of which works a conversion of all the property of the trust into personalty as one fund from the outset, are personal property and are not subject to the tax.</p> <p>Under the same statute, where the deed of trust creating a real estate trust contained no absolute requirement that the property should be sold and the proceeds distributed among the shareholders, and, although the trustees might transfer the property to a corporation if instructed by the shareholders to organize one, they were authorized to sell the property at the expiration of the trust only in default of action relating thereto by the certificate holders, and where the other provisions of the deed of trust created a partnership among the certificate holders, who for convenience had placed the title in trustees as their managing agents, it was held, that there had been no equitable conversion of the real property into personalty and that shares of this trust that belonged to a testator who died domiciled in a foreign country were subject to a legacy and succession tax.</p> <p>The declaration of trust creating the real estate trust first above described, of which the shares were held to be personal property, contained a provision that the "shares hereunder shall be personal property,” and, in regard to the partnership" real estate trust whose shares were held to be real estate, it was pointed out that the deed of trust creating that partnership contained no provision that the shares should be personal property, “whatever the legal effect of such a clause may be.”</p> <p>If what is desired in order to carry out the purposes of a real estate trust is an organization with a distinct entity, intermediate between a corporation and a partnership or pure trust and with its own rights and obligations, the Legislature and not the courts must be resorted to. By De Coubcy, J.</p>

<p>Contract, Building contract, Construction, Performance and breach. Architect. Estoppel.</p> <p>Where a building contract in writing contained a provision that “the final payment shall be made within forty-five days after the completion of the work included in this contract, and all payments shall be due when certificates for the same are issued,” and also a provision that “no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials,” a letter of the architect, containing an acceptance of the building upon condition that the contractor is to remedy certain defects of workmanship or of materials, is not of itself a final certificate which can be treated as conclusive evidence of performance, although the contractor promptly performs the conditions named in the architect’s letter.</p> <p>The certificate required by the provisions above quoted must be complete and must contain a statement in writing authenticated by the signature of the architect that the final payment, naming the amount, is payable to the contractor under the terms of the contract.</p> <p>In an action upon the contract above described, where the architect wrote a letter to the contractor accepting the building upon condition that certain defects of workmanship and of materials should be remedied, and these were remedied, and it appeared that the architect’s letter, before being sent to the contractor, had the approval in writing of the owner, it was stated that the questions whether, under all the circumstances, the letter operated as a waiver of the right of the owner to insist upon the architect’s final certificate, and, if it did so operate, whether the owner thereby was precluded from claiming in recoupment damages for defective workmanship or materials, were not raised by the record.</p>

<p>Contract or tort against the Boston and Maine Railroad by Emery and Company, Incorporated, as the owner and consignee of one hundred and fifteen barrels of pickled herring for the spoiling of the herring alleged to have been caused by the fault or negligence of the defendant. Writ dated May 27,1914.</p> <p>The plaintiff’s declaration, as amended, was as follows:</p> <p>“First count. And the plaintiff says the defendant is a common carrier for hire of passengers and goods and received for carriage to the plaintiff one hundred and fifteen barrels of pickled herring to be carried from Eastport in the State of Maine to Boston in the county of Suffolk; and that through the carelessness and negligence of its officers, agents and servants the Boston Ice Company, an agent of the plaintiff, was unable to gain access to the yard of the defendant in Boston for the purpose of re-icing said herring; and that in consequence thereof said herring were rendered unsalable for food purposes and that the plaintiff suffered great loss and damage. And the plaintiff being in doubt whether its action lies in contract or tort adds the following count in tort.</p> <p>“Second count. And the plaintiff says that the defendant is a common carrier of goods for hire and that on or about September 9, 1912, through the carelessness, recklessness and negligence of the defendant, its officers, agents and servants a carload of fish belonging to the plaintiff was permitted to decay and its value to be destroyed.</p> <p>"Wherefore, the plaintiff claims damages, both counts being for the same cause of action.”</p> <p>• In the Superior Court the case was tried before Dubuque, J. The evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant and reported the case for determination by this court, with the stipulation that, if the case ought to have been submitted to the jury, this court might order judgment for the plaintiff “for such of the items as the jury would have been warranted in finding in its favor;” otherwise, judgment was to be entered for the defendant on the verdict.</p>

<p>Two actions OF tort against the owner of an apartment house numbered 25 on Woodford Street in the part of Boston called Dorchester, the first by a married woman, occupying with her husband an apartment in the house, for personal injuries sustained by her on February 21, 1916, at about half past seven o’clock in the evening by falling on the outside steps of the house in the control of the defendant, which were used in common by all the tenants in the house, and the second action by the husband of the plaintiff in the first case for the loss of his wife’s services and society and expenses for medicine, medical attendance and nursing incurred by reason of her injuries. Writs dated May 19,1916.</p> <p>The declaration in the first action contained two counts, the first count alleging that the steps were in a dangerous condition by reason of the negligence of the defendant in failing to keep them in repair, and the second count alleging that “said defect or want of repair was caused by and consisted in whole or in part of snow or ice or both,” and that the plaintiff “gave the defendant due notice of the time, place and cause of said injury.” The declaration in the second action also contained two counts containing corresponding allegations.</p> <p>In the Superior Court the two cases were tried together before J. F. Brown, J. The evidence is described in the opinion. There was no evidence of any notice given by the husband of the time, place and cause of the accident to his wife, unless the notice given by the wife served the purpose of a notice in behalf of the husband also. At the close of the evidence the defendant in each case made a motion in writing that a verdict be ordered for the defendant. The judge denied these motions. The defendant then asked the judge to make the following rulings in the first case only, that of Ida P. Erickson:</p> <p>“ 19. Upon all the evidence the plaintiff is not entitled to recover under the first count of the declaration.</p> <p>“20. Upon all the evidence the plaintiff is not entitled to recover under the second count of the declaration.</p> <p>“21. Upon all the evidence the plaintiff is not entitled to recover.”</p> <p>The judge refused to make any of these rulings, and submitted the cases to the jury, who returned a verdict for the plaintiff in the first case in the sum of $2,000 and a verdict for the plaintiff in the second case in the sum of $150. The defendant alleged exceptions.</p> <p>The case was argued at the bar in March, 1918, before Rugg, C. J., Braley, De Courcy, & Pierce, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to Bridget Fitzgibbons as the dependent widow of James Fitzgibbons, who died on September 27, 1916, when in the employ of the Worcester Gas Light Company, his death being alleged to have been the result of an injury received by him on September 21, 1916, arising out of and in the course of his employment.</p> <p>The case was heard by Thayer, J. The evidence reported by the Industrial Accident Board is described in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board, ordering the insurer to pay to the claimant a weekly compensation of $10 for a period of four hundred weeks from September 21, 1916. The insurer appealed.</p> <p>The case was submitted on briefs.</p>

, Tort by George R. Wallace of Fitchburg against Thomas P. Coyne and Maurice J. Farrell, for the alleged conversion to their own use of certain jewelry, the property of the plaintiff, David W. Tinsley and Bernard H. Flaherty and the Safety Fund National Bank being summoned by trustee process as trustees. Writ dated October 30, 1917.

<p> Devise and Legacy. </p> <p>A testator by the residuary clause of his will gave the residue of his property to trustees, to pay one third of the net income to his widow during her life, to a nephew and a niece named each the sum of 81,500 a year during the term of their lives, to a certain charity the sum of $1,500 a year “ and the balance of the income of the principal of the trust estate, quarterly, in equal shares to my said nephew . . . and to my said niece . . . during the term of their lives.” He further provided as follows: "In case either my said nephew or my said niece dies before my said wife then I direct my said trustees to pay one third of the net income of the trust estate which the deceased received during his or her lifetime to the survivor, quarterly, for and during the term of his or her life, and one third to my said wife, quarterly, during the term of her life, and one third semiannually in equal shares to" two charities named. The testator’s widow-waived the provisions for her in the will. After the death of the testator the nephew named in the residuary clause died, and, the widow still surviving, the trustees brought a bill for instructions. Held, that the third of the income of the trust fund made payable to the testator’s widow, by reason of her waiver, fell into the residue of the income and was to be distributed under the provisions quoted above in regard 'to “the balance of the income,” which was the true residue of the income, and that the half share of the final income which had been payable to the nephew before his death must be distributed as intestate property, there being no provision of the will in regard to it, as a legacy which is a part of a residue lapses on the death of the legatee before its vesting and cannot again fall into the residue.</p> <p>In the case above described it was pointed out that the will disclosed no reason for invoking the rule, which sometimes is called inaccurately the satisfaction of disappointed legatees, as illustrated by Shreve v. Shreve, 176 Mass. 456.</p>

<p>Four actions of contract for alleged breaches by the respective defendants of a contract in writing between the plaintiff and the Southern New England Railroad Corporation for the construction of a railroad from Palmer to a point in Blackstone adjoining the State line of Rhode Island, the first action being against the Southern New England Railroad Corporation, a corporation organized under the laws of this Commonwealth, the second action against the Grand Trunk Railway of Canada, the third action against the Central Vermont Railway Company and the fourth action against all three of the corporations previously named as single defendants. Writs dated November 25, 1916, the ad damnum named in each being $3,000,000.</p> <p>The material allegations contained in the declarations in the four cases are described in the opinion. In each of the first three cases the defendant demurred and in the fourth case all the defendants demurred. The defendant in each action also made the motions to strike out certain portions of the declarations which are stated in the opinion.</p> <p>The portions of the declarations referred to in these motions were as follows:</p> <p>"And the plaintiff further says that said engineer was prevented by the interference of the defendant from giving a certificate representing the true measurements and valuations computed in accordance with the terms of said contract and specifications and was precluded from estimating in good faith and to the best of his independent and uncontrolled judgment the true amounts and valuations of said materials as provided by the terms of said contract and specifications, more particularly in that he was under the absolute control and direction of the defendant, and said defendant could at any time by the terms of said contract dismiss said engineer and appoint any other person to act in his stead.”</p> <p>"And the plaintiff further says that the defendant has wholly failed to carry out its said agreement in that extra work was required of the plaintiff under the terms of said contract, for which, according to the terms of said contract, the plaintiff is entitled to be paid; that, although the engineer and the contractor have failed to agree on the sum to be allowed therefor, the engineer has, although often thereto requested, wilfully, capriciously, fraudulently, unreasonably and without excuse, refused to issue certificates for said work and construction based upon the actual cost of the material and labor with fifteen per cent of the labor added for profit and use of tools as provided by the terms of said contract; that the plaintiff has often and repeatedly notified the defendant of the failure of the engineer to provide said certificates and to act in accordance with the terms of said contract, but nevertheless said defendant has at all times failed and refused and still fails and refuses to make any payments for said work and construction as performed by the plaintiff under the terms of said contract.</p> <p>“And'the plaintiff further says that although he was at all times ready to perform and carry out his part of said agreement the defendant repeatedly interrupted and suspended for long periods the progress of said work and prevented the plaintiff from completing the work and construction of said roadway so that the plaintiff was put in a position whereby he could not proceed with the prosecution of said work. Nor was the construction of the road so suspended as to enable the plaintiff to undertake any other work or construction, particularly as by the terms of said contract he was 'bound to resume the prosecution of said work upon the written order of the engineer. And the plaintiff further alleges that said interruptions and suspensions were not ordered in good faith and for any legal cause or reason within the intention of said parties, but were solely for the purpose of harassing, embarrassing and annoying the plaintiff and for the purpose of causing him great inconvenience, expense and damage by reason of said interruptions and suspensions of said work in order to induce the plaintiff to refuse to proceed with said contract and to abandon the construction and completion of said roadway.</p> <p>“And the plaintiff further says that the defendant has failed to carry out its part of said agreement in that it neglected and failed ¡, to cause instructions to be given by the engineer for the clearing of said right of way upon which the plaintiff was working. Nor did the defendant contract for the clearance of the right of way or removal of buildings or other structures on the right of way with other parties as provided under the terms of said contract whereby the plaintiff was continually delayed and.held up in the prosecution and progress of said work and whereby the plaintiff incurred expense and damage and was compelled to clear said right of way from buildings and other obstructions in order to complete the construction of said roadway as required by the terms of said contract.</p> <p>"And the plaintiff further says that certain portions of the work, which by the terms of said contract the plaintiff was entitled to perform in accordance with the terms of said contract, were taken from the plaintiff by said defendant and given to other parties, whereby the plaintiff was deprived of the profit which would have accrued from the performance of said portions of the work if done by the plaintiff under the terms of said contract.”</p> <p>The demurrers and the motions were argued before J. F. Brown, J., who in each of the cases made an order overruling the demurrer or demurrers and denying the motions. The defendants appealed from the several orders, and the judge, being of opinion that the issues raised by the demurrers and motions to strike out passed upon by his several orders were of such importance to the conduct of the actions, that they should be determined by this court before further proceedings in the Superior Court, reported each of the cases for such determination.</p>

<p>Workmen’s Compensation Act, Appeal, Compensation to minor whose wages may be expected to increase.</p> <p>An appeal from a decree made by a judge of the Superior Court in a claim under the workmen’s compensation act was taken by the employee on the day the decree was made and was not entered in this court until nearly three months later. Before that time the insurer had filed a motion that the appeal be dismissed for want of prosecution and a judge of the Superior Court had made an order allowing the motion unless the appeal should be entered in this court within thirty days, and the appeal was entered within that time'. On the argument of the appeal the insurer filed a like motion in this court that the appeal be dismissed because not presented seasonably to the court, and it was held that the Superior Court had jurisdiction of the motion and had fixed the time within which the appeal might be entered and that under the circumstances the motion to dismiss the appeal made in this court must be denied.</p> <p>On an application to the Industrial Accident Board under the provision of the workmen’s compensation act contained in St. 1911, c. 751, Part II, § 22, as amended by St. 1914, c. 708, § 8, by a minor “that he be compensated ... by the payment of a lump sum,” the board in hearing the application gave the employee, who was eighteen years of age when injured, the benefit of St. 1915, c. 236, and findings were made as to increases in earnings which reasonably might have been anticipated if there had been no injury and as to what the employee would be able to earn in his injured condition, and on these findings as a basis the board awarded a lump sum, which was affirmed by a decree of the Superior Court. There was evidence which might have supported a somewhat larger award. On appeal it was held that the findings of the board, resting upon evidence whose weight and credibility were wholly for their consideration, could not be disturbed.</p>

<p>Petition, filed in the Superior Court on October 5, 1917, under St. 1916,. c. 269, § 20, by a beneficiary receiving income from a trust established by the will of Matilda P. MacArthur, late of Philadelphia in the State of Pennsylvania, and held as trustee by the Girard Trust Company, a corporation having its usual place of business in that city, appealing from the refusal of the Tax Commissioner to abate a tax of $29.98 alleged to have been assessed illegally on the sum of $499.63 received by the petitioner as such' income.</p> <p>The case came on to be heard before Fox, J., who at the request of the parties, without making any decision, reported it under St. 1917, c. 345, for determination by this court upon the petition and the answer admitting the allegations of the petition. The material facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 4, 1917, by the trustees under the will of Julia B. Paine, late of Weston, for instructions. The prayer of the bill asked for instructions upon the following matters: :1</p> <p>“First: Whether any of the trusts declared in said will of Julia B. Paine are invalid under the rule of perpetuities as to any of the trust funds now held by them or as to any of the particular trusts declared in said will of said Julia B. Paine. ¡</p> <p>“Second: If it shall appear to the court that any of said trusts are invalid tinder said rule, whether it is now the duty df said trustees to marshal the funds held by them so as to satisfy such trusts entirely out of the property held by them which was derived from the individual property of said Julia B. Paine and use the appointed funds only for such of said trusts as are not invalid under the rule of perpetuities.</p> <p>“Third: That this honorable court will instruct them as to their duties in distributing and holding said funds for the purpose of carrying out the various trusts set forth in said will of Julia B.' Paine. 0</p> <p>“Fourth: That this honorable court will grant them such other and further relief as may be necessary or advisable in the premises.”</p> <p>The case came on to be heard before Braley, J., who reserved it upon the pleadings and an agreed statement of facts for determination by the full court. The material facts are stated in the opinion. The power of appointment referred to in the prayer for instructions was contained in the will of Hannah Farnham Lee of Boston, dated June 26,1862, with a codicil dated June 5,1863. Hannah Farnham Lee died on December 27, 1865. She gave the power of appointment to her granddaughter Julia Bryant, who was born on June 29, 1847, and on March 26, 1867, married Charles J. Paine, born on August 26, 1833. Julia Bryant Paine died on September 4, 1901. Charles J. Paine died on August 12, 1916. The will of Julia Bryant Paine was dated August 31,1901.</p>

<p>Municipal Court of the City of Boston, Appellate Division. Practice, Civil, Appeal. Words, “Final decision.”</p> <p>The “final decision of the Appellate Division” of the Muncipal Court of the City of Boston from which by St. 1912, c. 649, § 9, a right to appeal directly to this court is given, means a decision which terminates litigation on the merits of the controversy, directs what judgment shall be entered and leaves nothing to the judicial discretion of the trial court.</p> <p>A decision of the Appellate Division of the Municipal Court of the City of Boston ordering a new trial of an action is not a decision .from which an appeal lies directly to this court.</p>

<p>Petition, filed in the Land Court on October 28, 1910, for the registration of certain land in Medford, the petitioner claiming rights of way as described in the opinion.</p> <p>In the Land Court the petition was heard by Davis, J., who found that the petitioner had neither of the rights of way claimed by him. The petitioner alleged exceptions.</p>

<p>Contract, with a declaration containing two counts, the second count, upon which only the trial was had, being upon a contract in writing of subscription to a book entitled “History of Aleppo Temple,” to be published by the plaintiff. Writ in.the Municipal Court of the City of Boston dated January 11, 1917.</p> <p>The judge of the Municipal Court before whom the action was tried refused certain rulings asked for by the plaintiff, found for the defendant and reported the case to the Appellate Division, who made the-following order on October 25, 1917: “The plaintiff is given leave to amend the second count of ’its declaration, in accordance with opinion filed herewith, within ten days after the entry of this order; if such amendment be made, a new trial is granted upon such amended count, otherwise the report is dismissed.”</p> <p>On November 1, 1917, the defendant filed a claim of appeal from the foregoing order.</p>

<p>Negligence, In use of highway, Imputed, Causing death, Street railway. Corporation, Ultra vires. Street Railway. Proximate Cause. Practice, Civil, Charge to jury, Special questions to jury, Deliberation of jury after separation upon unanswered question. Jury and Jurors.</p> <p>Where, at the trial of an action against a street railway company for causing the death (before the enactment of St. 1914, c. 553) of a woman who was thrown from a carriage upon a public street in a city because the horse drawing the carriage fell into a hole in the street between street car rails which the defendant had undertaken to guard, there was no direct evidence as to the woman’s conduct before the accident other than that she was sitting at the left hand side of the carriage beside her husband, who was driving, and there was evidence tending to show that both she and her husband were experienced drivers of homes, that there had been digging in various parts of the street and piles of dirt wei e about, that there were two watchmen and some lights in the neighborhood of the hole which caused the accident, that the husband was driving in the street car track, the horse trotting at a speed of about five or six miles an hour and that there was no easily visible indication of the.excavation between the rails, findings are warranted that both the husband and the wife were in the exercise of due care.</p> <p>If a city makes an excavation between the rails of a street car track and the street ' railway corporation undertakes to guard the hole and to prevent travellers from falling into it, the assumption of that duty is not an act by the corporation ultra vires.</p> <p>If, owing to negligence of the street railway company in performing the duty thus assumed by it, the death of a person is caused, recovery for such causing of death is not limited to the SI,000 allowed by R. L. c. 51, § 17, in an action against a municipality for loss of life caused by a defect in a highway.</p> <p>At the trial of an action for causing death, the judge in his charge to the jury stated, “if you find upon all the evidence that the intestate’s death was hastened by this accident, then the plaintiff has sustained the burden of proving that her death was caused by the accident within the meaning of this statute. If you find that she was confined to her bed and had become weak and enfeebled, and if owing to that weakness and confinement hyperstatic pneumonia developed which caused her death, then you would also be warranted in finding that her death was due to the accident. If you should further find that she had some kidney trouble prior to the accident and that owing to the accident it was aggravated and made acute and that her death was materially hastened by the accident, then you would properly be warranted in finding that her death was caused by the accident.” Held, that such instructions were not fairly susceptible of the construction that there could be recovery even though the confinement to the bed and consequent weakness were not the result of the accident or their proximate cause, but that the instructions meant ¿hat there could be no recovery except for consequences flowing from the fall as their operative cause, which was a correct statement of the law.</p> <p>The declaration in an action of tort by an administrator contained three counts, one for conscious suffering of the intestate, one for damage to his property and one for causing his death. Special questions were submitted to the jury on a Thursday relating to due care of the plaintiff, negligence of the defendant and damages, it being agreed by counsel that the answers to the questions should be regarded as a sealed verdict in that the formal opening of the verdicts one way or the other might be done when the jury reconvened on the next court day, which was Monday. The jury separated at eleven o’clock at night on Thursday. When court reconvened on Monday, the foreman of the jury announced agreements on the answers to all the questions except one, which related to the damages to be assessed under the count for causing death. From the other answers it appeared that the jury had found that the intestate was in the exercise of due care and that the defendant was negligent. The foreman, in answer to an inquiry by the judge, stated that he thought that an agreement might be reached as to the unanswered question. Upon inquiry, the judge was informed that no member of the panel had talked with anybody in any manner about the case. The judge thereupon ordered the jury to return to their room and consider the unanswered question further. They did so and agreed upon an answer upon which as a basis the judge ordered a finding for the plaintiff upon the appropriate count of the declaration. Held, that the action of the judge was not an improper exercise of his discretion.</p>

<p>Bill in equity, filed in the Superior Court on December 29, 1914, and afterwards amended, by the widow and sole beneficiary under the will of Horace K. Parsons, late of Northampton, against the executrix of the will of Charles O. Parsons, a son of Horace K. Parsons, to set aside certain conveyances made by the plaintiff to her son, Charles O. Parsons, and for an accounting, it being alleged among other things that the “Oregon” deed, described in the opinion, was procured by fraud and undue influence, was voluntary and without consideration, and was incomplete because it bore no seal; also a Cross bill in equity, filed on March 24, 1917, by the defendant against the plaintiff in the suit above described, seeking to have the plaintiff ordered to affix a seal to a deed described in the opinion.</p> <p>The suit was referred to a master and his findings, set forth in three reports, were confirmed. '</p> <p>The findings of the master as to the circumstances attending the omission of the wafer seal from the “Oregon” deed, referred to in the opinion, were “ that the notary inscribed upon said deed what purports to be a seal, namely — the word ‘seal’ with a scroll about it; that no seal of substance as is required in this Commonwealth was affixed thereto; that the said Sarah A. Parsons signed the instrument in the presence of the notary and acknowledged the same to be her free act and deed before him, he, the said notary, thereupon affixing his signature thereto in his official capacity; that within a short time thereafter Sarah A. Parsons mailed the deed to her son Charles O. Parsons, addressed to Florence, Massachusetts, together with a letter [which the master quoted] . . . that at the time she executed the deed . . . she, was acquainted with and fully understood its contents, that she delivered the same to Charles O. Parsons for good and valuable consideration "and for-one which was adequate with the intent to convey to said Charles O. Parsons absolutely the property therein described; that she was not induced so to by false or fraudulent representations of said Charles, that the deed was intended to be complete and the omission of a wafer seal from said instrument was due to accident; ...”</p> <p>Other material findings are described in the opinion.</p> <p>The master also, by agreement of the parties and upon an order of the "court, reported certain of the evidence before him. The plaintiff filed objections and exceptions to the reports, which were overruled by Aiken, C. J., by whose order a final decree favorable to the defendant was entered. ' The plaintiff appealed.</p>

<p>Petition, filed in the Superior Court on January 15, 1918, under St. 1916, c. 269, § 20, appealing from the refusal of the Tax Commissioner to abate an income tax of six per cent assessed on the sum of $871 received by the petitioner during the year 1916 in his business of pawnbroker and dealer in second hand articles carried on by him at his shop on Washington Street in Boston.</p> <p>The answer of the Tax Commissioner filed by the Attorney General alleged that the petitioner was engaged in 'the business of lending money as a pawnbroker upon the security of tangible personal property; that in connection with all such loans made by him a ticket in the form annexed to the petition, duly filled out, was issued to the borrower; that the amount of $871, received as alleged in the petition from dealing and trafficking in pledges and carrying on the business of a pawnbroker, consisted entirely of amounts paid to the petitioner as compensation for loans made by him as a pawnbroker, and was the total amount paid to him during the year by customers redeeming pledges in excess of the amounts lent and repaid; that accordingly the amount of $871 described in the petition constituted interest subject to taxation under the provisions of St. 1916, c. 269, § 2, and that the tax described in the petition was assessed in accordance with the provisions of that statute. v</p> <p>The case came on to be heard before Chase, J., and, the petitioner agreeing that the allegations of fact contained in the respondent’s answer were true, and there being thus an agreement as to all material facts, at the request of the parties the judge reported the case for determination by this court without making any decision thereon.</p> <p>The case was submitted on briefs.</p>

<p>Custom. Evidence, Of custom, Presumptions and burden of proof. Contract, Construction, Incorporation of custom. Practice, Civil, Exceptions, Findings by judge.</p> <p>At the trial of an action for breach of a contract, made by correspondence, whereby the plaintiff agreed to sell and deliver and the defendant agreed to purchase and pay for certain marble to be used for the interior finish of a post office building, the defendant admitted the making of the contract but contended that it was conditional upon the approval, by a supervising architect employed by the national government, of samples submitted by the plaintiff, by reason of a general custom that such contracts relating to the construction of government buildings always were subject to such a condition. It did not appear that the plaintiff had knowledge of any such custom. The defendant offered in evidence his own testimony that such a provision was written into every government contract that he had taken. The evidence was excluded. Held, that the exclusion was proper, there being no offer to show that the plaintiff had knowledge of the custom and the evidence not tending to show a custom of such general and universal application that the plaintiff must be presumed to have had knowledge of it.</p> <p>There was conflicting evidence, at the trial of the action above described, as to whether a written statement of the condition that samples should be approved by the supervising architect was included in a set of plans sent to the plaintiff by the defendant. The judge found for the plaintiff. Held, that this finding must mean that the judge found that no such written statement was furnished to the plaintiff and that the plaintiff had no notice of such a custom; and that, upon such findings, a further finding for the plaintiff was warranted.</p> <p>No exception lies to the refusal of a judge sitting without a jury to make specific findings of fact.</p>

Tort for personal injuries sustained on June 10, 1915, from being shot in the leg by a revolver alleged to have been handled negligently by a servant of the defendant and which such servant was required by the defendant to carry while in the performance of his duties. Writ dated January 5, 1916. In the Superior Court the case was tried before King, J!

<p>Indictment, found and returned in the county of Middlesex on June 7, 1917, charging that the defendant on June 1, 1916, at Melrose “did assault and beat Lauretta W. Wakelin, with intent to murder her, and by such assault and beating did murder Lauretta W. Wakelin.”</p> <p>Certain motions by the defendant and their disposition are described in the opinion. The portions of the motions for a bill of particulars which were denied asked for specifications “in what manner and by what means” the defendant assaulted the deceased, “what was the cause of” her death, and “how and in what manner did the alleged assault and beating . . . cause” her death.</p> <p>The so called “disclaimer,” referred to in the opinion, was filed before the impanelling of the jury and was as follows:</p> <p>“And now comes the Commonwealth of Massachusetts, by Nathan A. Tufts, District Attorney for the Northern District, and says that the above mentioned indictment sets forth and charges the commission of a crime greater than that which the Commonwealth expects to be able to prove, that is to say, the crime of murder; that the Commonwealth, therefore, disclaims and does not and will not ask or contend for a conviction of the defendant for the crime of murder in either the first or second degree; that the Commonwealth will only ask and contend for the conviction of the aforesaid Joseph Wakelin for the crime of manslaughter, a crime of less degree than that specifically set forth in the indictment above mentioned.”</p> <p>The defendant was tried before Keating, J. The material evidence, incidents of the trial and exceptions of the defendant are described in the opinion. The defendant was found guilty and alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Mechanic’s Lien. Statute, Repeal.</p> <p>For the purpose of enforcing a mechanic’s lien which came into existence before January 1, 1916, R. L. c. 197, § 10, was not repealed by St. 1915, c. 292, § 13. Following See v. Kolodny, 227 Mass. 446.</p>

<p>Petition under St. 1915, c. 237, § 4, filed in the Land Court on August 6, 1917, by the holder of a tax title to certain land in Cambridge acquired by a sale on July 9, 1915, for the collection of taxes for the year 1914, to foreclose rights of redemption from such sale.</p> <p>The rights of all parties were disposed of excepting those of the city of Cambridge, which claimed under tax deeds at sales in 1909, 1910, 1911, 1912, 1913, for the collection of taxes due, respectively, in the year preceding each of such salés.</p> <p>The case was heard by Davis, J., who ruled and ordered “that the petitioner’s title is paramount to the lien claimed by the respondent. Unless the respondent files forthwith an offer to redeem there must be a decree for the petitioner forever foreclosing and barring all rights of redemption.” The respondent alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Appeal. Supreme Judicial Court. Superior Court. Jurisdiction.</p> <p>Under St. 1915, c. 132, which provides that “a memorandum of agreement approved by the Industrial Accident Board, shall have effect, notwithstanding an appeal, until it is otherwise ordered by a justice of the Supreme Judicial Court who may, in any county, suspend or modify such decree [of the Superior Court] . . . during the pendency of the appeal,” a single justice has discretionary power to suspend a decree of the Superior Court ordering an insurer to make payments to the dependent widow of a deceased employee, from which the insurer has claimed an appeal, and the granting of such an order of suspension is a proper exercise of discretion if there is reasonable ground for raising the question of the insurer’s right to appeal, although it afterwards is ordered by this court that the insurer’s appeal be dismissed as claimed without right.</p> <p>Under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, and St. 1917, e. 297, § 7, there is no right of appeal from a decree of the Superior Court “ based upon ... a memorandum of agreement” approved by the Industrial Accident Board.</p> <p>The denial by the statute mentioned above of the right of appeal from a decree of the Superior Court based upon such a memorandum of agreement applies to an appeal attempted to be taken on the ground that the court was without jurisdiction of the proceeding because the injury for which compensation was awarded occurred on navigable waters and, under the Constitution of the United States, was cognizable only under admiralty jurisdiction.</p>

<p>Tort for personal injuries, received on March 11, 1916, while the plaintiff was in the defendants’ employ and caused by her falling backward down a flight of stairs because a step, which was below her, was missing therefrom. Writ dated March 25, 1916.</p> <p>In the Superior Court the case was tried before Morton, J. The material evidence is described in the opinion. At the close, of the evidence, the judge ordered a verdict for the defendants and reported the case to this court for determination, stating in the report, "On the foregoing evidence, subject to the plaintiff’s exception, I ruled that the plaintiff had assumed the risk of injury from said defective stairs, and that the provisions of St. 1909, c. 363, to the effect that an employee does not assume the risk of defects reported and not remedied within a reasonable time, do not apply to risks arising from defects existing in the premises at the commencement of the employment, but only to risks subsequently arising; and thereupon, at my direction, the jury returned a verdict for the defendants, and, by consent of the parties, I report the case for determination by the full court, with the stipulation that, if my ruling was correct, judgment is to be entered for the defendants with costs, and if my ruling was incorrect, judgment is to be entered for the plaintiff against the defendants James J. Danas and Charles Danas for the sum of $200 and costs.”</p> <p>St. 1909, c. 363, is as follows:</p> <p>“Section 1. If a defect in the ways, works or machinery of a person, partnership or corporation has been reported to the person whose duty it is to remedy said defect, or cause it to be remedied, or to report its existence, and such defect is not remedied within a reasonable time, and by reason of said defect an employee is injured, such employees shall not be held to have assumed the risk of such injury.</p> <p>“ Section 2. This act shall take effect on the first day of January in the year nineteen hundred and ten.”</p> <p>The case was argued at the bar in December, 1917, before Rugg, C. J., Braley, Crosby, Pierce, & Carroll, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Insurance, Fire: Negligence, As defence to action upon policy of fire insuranc^, Violation of statute. Fire. i</p> <p>> ' > Where, in an action upon a policy of fire insurance, it appeared that-the buildings insured were destroyed by a fire which was communicated from a fire set more than fifty feet from the buildings by the insured, who had violated the provisions of St. 1911, c. 244, § 1, in failing to procure the permit required by that statute before starting the fire, it was held, that it would have been improper to order a verdict for the defendant, there having been questions for the jury, whether the violation of thé statute in failing to procure the permit was a negligent act of the insured which was a proximate cause of the loss, and, if so; whether the negligence was of such a character as to bar recovery on the policy;</p> <p>Mere negligence on the part of one insured against loss by fire does not prevent recovery on the policy, it being one of the objects of insurance to protect the insured from loss due to carelessness. ’</p>

<p>Workmen’s Compensation Act, Who is employee, Terms of policy.</p> <p>In a claim for compensation under the workmen’s compensation act for an injury by a heavy weight falling on the claimant’s leg while he was superintending the moving of machinery to be set up in a factory, it appeared that the work was being • done by a corporation, of which the claimant was the president and a director and the owner of one half of its capital stock. The corporation carried on the business of a partnership, consisting of the claimant and his brother. The claimant’s brother was the treasurer of the corporation and owned the other half of the capital stock. A policy of insurance under the workmen’s compensation act insured the brothers both as a corporation and as individuals. The policy provided that “If the subscriber is a corporation, the remuneration of the president... actually engaged ... in the personal superintendence of, the manual or mechanical operations’’ should not be included in the insurance unless such president’s “entire remuneration is included in the declarations hereinafter contained and upon which the premium for this policy is computed.” The remuneration received by the claimant was excluded in determining the amount of the premium. The policy had been taken out by the claimant’s brother as treasurer of the corporation, and the remuneration of the claimant and his brother had been expressly excluded upon their representation '“that they were practically a partnership and owned practically all the business.” The Industrial Accident Board found that the claimant was an employee and that “ the fact that the insurer, for any reason, did not include the earnings of the claimant in its payroll audit, has no bearing upon the rights of the claimant as an employee.” An award was made by the board, which was affirmed by a decree of the Superior Court. Held, that the decree must be reversed and a decree entered in favor of the insurer, because, assuming that the claimant was an employee of the corporation of which he was the president, his remuneration not being included in the payroll on which the premium was based, his injury was not covered by the policy.</p>

<p>Practice, Civil, New trial.</p> <p>A judge is not bound as a matter of law to grant a new trial because of newly discovered evidence which, if presented to a jury and believed by them, would warrant the reaching of a different result.</p> <p>At the trial of an action of tort for malicious prosecution and false arrest, the plaintiff and his daughter testified that the plaintiff was arrested on a warrant, procured by the defendant, and was handcuffed and, while so handcuffed and on the way to the police station, met acquaintances. There was a verdict for the plaintiff. The defendant moved for a new trial, supporting his motion by affidavits of three police officers that no handcuffs were used upon the plaintiff and that no one was met on the journey to the station except a police officer. The motion was denied. Held, that the denial could not be said to be an abuse of discretion, and that the exception must be overruled.</p>