Volume 231 — Massachusetts Reports

<p>Sale, Warranty. Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>One, who purchased the good will of a garage and its equipment and received a bill of sale in -writing and under seal containing this covenant by the seller, “1 hereby covenant with the grantee that I am the lawful owner of the said goods, and chattels; that they are free from all incumbrances, that I have good right to sell the same as aforesaid; and that I will warrant and defend the same against the lawful claims and demands of all persons,” in the absence of fraud inducing the sale, cannot maintain an action of contract against the seller for breach of an oral warranty as to the cost of the equipment purchased.</p>

<p>Appeals from a decree of the Probate Court for the county of Bristol revoking a decree dated October 13, 1916, authorizing the administrator of the estate of Frances E. Curtis, late of New Bedford, to sell certain land at Edgartown for the purposes of distribution. The petition for • revocation was filed June 15, 1917.</p> <p>The appeal came on to be heard by Braley, J., upon the pleadings and an agreed statement of facts and by him was reserved for-determination by the full court.</p> <p>The material facts agreed upon are described in the opinion.</p> <p>R. L. c. 146, § 18, as amended by St. 1907, c. 236, was as follows:</p> <p>“Section 18. The Probate Court may, upon the petition of an administrator, administrator with the will annexed, or executor unless the will otherwise provides, with the consent of all parties interested or after notice, license him to sell the whole or any part of the real property or any undivided interest therein belonging to the estate of the deceased in such manner and upon such notice as the court orders, for the purpose of distribution; and the net proceeds of such sale, after deducting the expenses thereof and such amount as may be required for the,payment of debts and legacies in consequence of a deficiency in the personal property, shall, after two years from the time of the filing of the administrator’s or executor’s bond, be distributed to the persons who would have been entitled to said real property and in the proportions to which they would have been entitled had it not been sold.”</p> <p>This statute, after the decree, the revocation of which is the subject of these appeals, was further amended by St. 1917, c. 296, to read as follows:</p> <p>"Section 18. The Probate Court may, upon petition of an administrator, administrator with the will annexed, or executor, unless the will otherwise provides, filed within one year after the date of the giving of the executor’s or administrator’s bond, or if an administrator de bonis non shall be appointed within one year after the date of the original appointment of the executor or administrator, then within six months after the date of the giving of a bond by such administrator de bonis non, with the consent of all parties interested or after notice, license him to sell the whole or any part of the real property or any undivided interest therein belonging to the estate of the deceased, in such manner and upon such notice as the court orders, for the purpose of distribution; and the net proceeds of such sale, after deducting the expenses thereof and such amount as may be required for the payment of debts, legacies and charges of administration, in consequence of a deficiency in the personal property, shall, subject to the laws governing the distribution of the personal estate of the deceased, be distributed to the persons who would have been entitled to such real property and in the proportions to which they would have been entitled had it not been sold. Before any such license shall be issued, the petitioner shall file in the Probate Court an affidavit containing the names of all persons known to him as having or claiming any interest in said real estate derived from any deed of conveyance or mortgage by, through or under any of the heirs or devisees, and if it appears that there are any such persons, they shall be notified in accordance with the order of the court, and shall be made parties to the proceedings.”</p>

<p>Way, Public. Prqctice, Civil, Judge’s charge, New trial, Exceptions.</p> <p>A pedestrian upon a sidewalk which is a part of a public way, while stopping near the curb for the purpose of conversation with another pedestrian upon the sidewalk, has a right to assume that drivers of vehicles using the part of the way wrought for carriage travel will exercise ordinary precaution to avoid having their vehicles come into contact with him.</p> <p>If, after the judge presiding at the trial of an action of tort for personal injuries has given proper instructions to the jury as to the plaintiff’s right of recovery for loss of earning capacity, he also, subject to an exception by the plaintiff, states “thatwhile he himself did not believe that the law was correct, nevertheless it was the law,” and, afterwards, that, “if they found that a man of the plaintiff’s capabilities would, except for this accident, have been worth more as a salesman of bonds than he was actually worth, they should allow him whatever loss he had proved in that regard,” the plaintiff’s exception must be overruled because it is plain that the jury could not have misunderstood the- judge’s meaning and because his statement of the law was correct.</p> <p>Exceptions to rulings of law made upon a motion for a new trial can be taken only to rulings upon questions which arise for the first time at the hearing upon such motion.</p> <p>If the judge presiding at a trial, during the course of the closing argument of the counsel for the plaintiff, by motions of his head shows dissent from the counsel’s statements and the plaintiff does not except to such conduct of the judge before the verdict, the propriety of such conduct cannot be brought before this court for deterinination by an exception to a refusal to grant a motion for a new trial based upon such alleged impropriety.</p>

<p>Practice, Civil, Conduct of trial, Discretionary excusing of juror, Auditor’s report, Withdrawal of evidence on issues not submitted to the jury, Exceptions, New trial. Jwry and Jurors. Evidence, Auditor’s report, Relevancy and materiality. Negligence, Railroad. Nuisance. Smoke. Damages, In tort.</p> <p>At the impanelling of a jury at the trial of an action by two trustees, acting in the same interest, against a raiboad company, the plaintiffs challenged peremptorily three jurors and their names were read off and they left their seats before the defendant objected. An objection made by the defendant that the plaintiffs were entitled to but two challenges was sustained by the presiding judge, but, it appearing to the judge from the conduct of one of the jurors as he left his seat that the plaintiffs would not have a fob trial if he remained a member of the panel, the judge in the exercise of his discretion also directed that the third juror whose name had been read as challenged by the plaintiffs should be excused. Held, that it could not be said that the judge’s informal exercise of his discretion was prejudicial to the defendant.</p> <p>An action of tort with a declaration in three counts was referred to an auditor who filed two reports. At the trial of the action the report was introduced in evidence. At the close of the evidence the plaintiff elected to go to the jury upon one count only, and at the request of the defendant many portions of the reports were withdrawn specifically from the jury’s consideration by the judge, who, at the defendant’s request, read to the jury the portions so withdrawn. The report itself did not go to the jury room and the charge contained instructions in much detail as to the jury’s duty to disregard the auditor’s rulings of law and those of his findings of fact which were not pertinent to the counts submitted to the jury; and it was held, upon a careful review of the record, that no error was committed.</p> <p>The trial of the action above described lasted six weeks and was complicated by the ehmination, upon an election of the plaintiff at the close of the evidence, of two of the counts of the declaration and of much of the auditor’s reports. The defendant moved for a new trial and the motion was overruled; and it was said that, as a practical matter, if it had appeared to the presiding judge that the defendant’s rights had not been safeguarded properly by the jury, it was to be presumed that the motion for a ne,w trial would have been granted.</p> <p>At the trial of an action of tort against the New York Central and Hudson River Railroad Company for damages caused to property of the plaintiff adjacent to the railroad in Boston by unreasonable and unnecessary excess of smoke, soot and cinders from the defendant’s locomotives, it is proper to exclude as immaterial questions asked of the plaintiff in cross-examination as to his applying during the period of the alleged wrongful acts of the defendant for an abatement of taxes on other properties belonging to him on different streets not nearer than a quarter of a mile to the property in question and not affected by the railroad.</p> <p>At the trial of the action above described, the defendant asked a witness in cross-examination, “You have observed smoke on other roads coming into Boston, I suppose, entering Boston?” and answered, “On the New York, New Haven, and Hartford, yes.” On redirect examination the witness then was permitted to testify, subject to an exception by the defendant, that in one of the years covered by the action he had observed about one hundred engines on the New York, New Haven, and Hartford railroad in the vicinity of Cumberland and Durham streets. Held, that the evidence was admissible because of the question asked of and answered by the witness in cross-examination.</p> <p>Part of the property alleged in the action above described to have been damaged was a hotel. The defendant introduced evidence showing the gross receipts of the hotel during a certain period. Subject to an exception by the defendant, the plaintiff was allowed to read a column of payments for taxes and other matters, as prepared by the defendant’s expert. Later the entire paper was put in evidence without objection. Held, that the exception must be overruled.</p> <p>Evidence, even if inadmissible, if material and admitted without objection, properly may be considered by the jury.</p> <p>If, by reason of smoke, soot, cinders and noxious odors emitted unnecessarily and unreasonably by locomotives upon an adjacent railroad, the proprietor of a hotel is unable to use a dining room in the hotel nearest the railroad, and permanently removes it to another part of the building, in an action against the railroad company for damage caused by its wrongful acts he cannot recover for the expense of the permanent change of the dining room because the wrongful conduct of the defendant was of a temporary nature; but the effect of the conduct of the defendant upon the use of the dining-room should be considered as an element to be included in the diminished rental value of the premises, for which the plaintiff is entitled to be compensated.</p> <p>In the same action the plaintiff was held to be entitled to recover for damage done to the outer walls of his building as a direct result of the defendant’s wrongful emission of smoke and soot upon such walls.</p> <p>At the trial of the action above described, the judge submitted to the jury four questions calling for the assessment of damages as to four distinct elements. Upon the return of their answers, he ordered them to return a general verdict for the plaintiff which included the sums found by them in answer to the two last questions, but, subject to exceptions by the plaintiff, excluded the sums found in answer to the first two questions. This court held that the damages found in answer to the first question should have been included in the general verdict. It appeared that there was evidence warranting that answer, and it further was held that it was unnecessary to order a new trial of that single question of damage, but that the amount found in answer to the first question should be added to the general verdict and that judgment should be entered accordingly.</p>

<p>Negligence, Unguarded hole near private way. Nuisance. Agency, Ratification. Practice, Civil, Exceptions. Joint Tortfeasors. Damages, Mitigation, Part satisfaction by co-tortfeasor. Pelease. Covenant, Not to sue.</p> <p>In an action against an oil company by a housemaid for personal injuries sustained on a foggy evening by falling into an excavation from which a gasoline tank had been removed by the defendant for repairs at the request of the owner of the land, who was the plaintiff’s employer, when the plaintiff with two other housemaids was "getting an airing” by walking in the private driveway of their employer, there was evidence that, although the tank when in place was from six inches to a foot from the driveway, yet the excavation made to remove it was four or five feet deep and four or five feet in diameter, and there was some evidence that the unguarded hole extended into the driveway and that the plaintiff was walking on the driveway when injured. Held, that it was the duty of the defendant, if shown to have made the excavation, to use reasonable care to guard the work and in a proper way to protect the employees of the landowner lawfully using the driveway from the danger of falling into the hole.</p> <p>Tn the same case there also was evidence that the plaintiff when she fell into the hole was walking across the lawn for the purpose of picking a pear. There was evidence that the plaintiff and other maids employed in the household of the landowner picked fruit in the daytime and that no objections had been made, and it was said that, even if the plaintiff at the time of her injury was on the lawn and not on the driveway and was looking for a pear, the jury could find that the plaintiff in passing over the lawn, although not invited, was there lawfully so far as the defendant was concerned and could recover for the consequences of its negligence.</p> <p>In the same case it appeared that the defendant delivered gasoline to the landowner from a truck. The driver of the truck, whose duty it was to sell for the defendant gasoline, oil and tanks, testified that he informed the defendant’s president that he was going to “take up and, if possible, repair” the landowner’s tank and that the president told him to “ go ahead,” that the driver paid for the excavating and reported to the defendant’s president that the landowner was satisfied with the tank, that a bill for the amount thus paid by the driver was sent by the defendant’s president to the landowner and paid by him to the defendant. The defendant asked the judge to instruct the jury that there xas no evidence that the act of the driver in digging up the tank was within the scope of his employment. The judge refused to give this instruction. Held, that the instruction was refused rightly, as there was evidence of the driver’s authority to do the X work and that, even if he originally had lacked such authority, his acts were ratified by the president’s order to go on with the work and by the defendant’s acceptance of payment for it from the landowner.</p> <p>In the same ease the defendant contended that the judge had given an instruction which authorized the jury to find that the driver was acting within the scope of his employment without considering the effect of ratification and express approval, but it appeared that the defendant did not call the attention of the judge to this objection to the instruction given by him and took no specific exception to any part of the judge’s charge. Held, that the contention, whether warranted by anything in the charge or not, was not open to the defendant.</p> <p>In the case above described it appeared that before the action was brought the plaintiff had brought an action for her injuries against the landowner, which she discontinued under an agreement by which she covenanted with the landowner not to sue him and received from him the sum of $1,500, but the instrument containing the covenant not to sue recited that it did not release the plaintiff’s cause of action against any one other than the landowner, and it was pointed out that the defendant, not being a party to the instrument, could introduce oral evidence to show that the plaintiff accepted the money in release of all claims against her employer, but, although there .was evidence which would have warranted such a finding, it also was pointed out that this was a question of fact for the jury and that they had a right to find that the money was not accepted for this purpose.</p> <p>In the same case the defendant asked the judge to instruct the jury that, if they found any liability on the part of the defendant, they must consider the payment of 31,500 by the landowner in mitigation of damages. The judge refused to give tins instruction and the jury returned a verdict for the plaintiff in the sum of 35,000. Held, that, while the jury must have found that the $1,500 was not received from the landowner to release or discharge him from liability but was received from him in consideration of the plaintiff’s covenant not to sue him for the personal injury she had received, the $1,500 should be applied in reduction of her damages, as she was entitled to but one satisfaction of her claim from all the tortfeasors who caused her injuries, and it was ordered that the defendant’s exception should be sustained unless the 'plaintiff within a time named should remit the amount of the verdict in excess of $3,500.</p>

<p>Bill in equity, filed in the Superior Court on September 11, 1917, by a corporation engaged in the business of manufacturing machines and machine tools and having a usual place of business in Springfield, against the officers and members of two voluntary unincorporated associations known as the International Association of Machinists, Locals 214 and 682, to enjoin the defendants from unlawfully interfering with the plaintiff’s business by aiding or abetting a strike in force against the plaintiff.</p> <p>The case was. referred to a master, who filed a report, the material parts of which are described in the opinion.</p> <p>The tenth paragraph of the defendants’ answer was as follows:</p> <p>“10. Further answering to the plaintiff’s bill of complaint the defendants say that the plaintiff is a member of an association of employers who are opposed to labor organizations; that by the constitution and by-laws of said association the plaintiff is not allowed to settle any labor controversy with its employees under penalty of a fine or other punishment; that if left to its own devices and wishes the plaintiff in this case would have come to an agreement with the defendants, but that the said association through its officers or attorneys interferred in the situation without right and prevented the plaintiff by threats of boycott and future injury to its business from dealing with and settling this dispute with the defendants.”</p> <p>On this matter the master made the following finding:</p> <p>“Since the strike began the company has become a member of the Employers’ Association of Hampden County. The principal object of this association is to render assistance to its various members and to foster the principle of the open shop. The provisions of the constitution of the association would not prevent the company from settling the strike in question, and there was no evidence that any attempt had been made to adjust it.”</p> <p>After the filing of the master’s report a motion of the plaintiff for a temporary injunction was heard by Callahan, J., who made the following interlocutory decree:</p> <p>“The above entitled case came on to be heard on the plaintiff’s motion for a temporary injunction after the filing of the master’s report, and thereupon, upon consideration thereof, and upon hearing the parties, it is ordered, adjudged and decreed, That an injunction issue pendente lite to remain in force until the further order of this court or of some Justice thereof restraining the defendants individually named in the plaintiff’s bill and the members of said Locals 214 and 682, their agents, servants and confederates, and each and every of them, from combining or conspiring together to interfere with the plaintiff’s business for the purpose of compelling the plaintiff to maintain a so called 'closed shop,’ or in any manner carrying on, aiding or abetting the said strike against the plaintiff for the purpose aforesaid; and, unless and until the defendants shall formerly renounce the purpose aforesaid and give notice to the plaintiff of such renunciation, further restraining them, their agents, servants and confederates, and each and every of them, from carrying on, aiding or abetting, in any manner whatsoever, said strike for any purpose.” 1 After the order confirming the master’s report, which is mentioned in the opinion, the defendants filed the following motion to amend their answer:</p> <p>“And now come the defendants in the above entitled action and move to amend their answer originally filed therein by adding thereto the following:</p> <p>“And the defendants further answering, say that the following named, all of whom are defendants in the said action, to wit, William A. Fronk, David H. Hatch, George W. Loyd, Andrew Soitzer, Walter Worden, Fred A. Thompson, John D. Neilan, George M. Hayes, George Cloutier, Alcide Bourdear, Andrew Grimes, Leon Soland, Joseph William Allard, John J. Kinetter, William J. Bousquet, Charles Johnston, John Brobery, Leland E. Breyer, Lafayette B. Price, Clarence W. May, William J. Murphy, Charles J. Hill, Benjamin Cohan, Jno. W. Oliver, F. J. Carlin, Roy Quigley, Emil Trempke, and Fred Keating, have, since the filing of the plaintiff’s bill of complaint herein, abandoned and renounced and do hereby furthermore abandon and renounce the purpose of compelling the plaintiff to maintain a so called closed shop or the said apprentice system, so called, and also the purpose of carrying on, aiding, or abetting in any manner the said strike against the said plaintiff for the said purposes aforesaid of maintaining the closed shop, so called or the said apprentice system, so called, or any other unlawful object in connection with the said strike and the maintenance thereof; and have refrained from participating and do furthermore purpose to continue to refrain from participating in the said strike for the purpose of compelling the plaintiff in any manner to maintain the said so called closed shop or the said so called apprentice system, or for any other unlawful object; and have furthermore communicated to the plaintiff the fact of their said abandonment and renunciation of all the said purposes aforesaid.”</p> <p>This motion was heard by Callahan, J., who made an order allowing the amendment.</p> <p>Both parties filed exceptions to the master’s report. The defendants’ third, fourth and fifth exceptions, relied upon by them, which are referred to in the opinion, were as follows:</p> <p>“3. Because the finding in the second paragraph on page 10, that the provisions of the constitution of the Employers’ Association would not prevent the plaintiff from settling the strike, is a conclusion of law.</p> <p>"4. Because there was evidence that the plaintiff belonged to an association called the Employers’ Association, the rules and bylaws of which prevented the plaintiff from dealing with his men or with the defendants without first consulting the association; that said rules and by-laws disclose the fact that the association is an illegal one and in restraint of trade and that the plaintiff could not have come into court with clean hands; that the members of said association were assessed for the purpose of resisting strikes in the shops of the various members and that if any member of said association violated the rules or regulations they were liable to a heavy fine; that the plaintiff could not withdraw from said association; that said rules and regulations show that the plaintiff was engaged in conspiracy against the defendants; and because all of the above evidence has been ignored by the master and no finding setting forth the above facts has been made by him.</p> <p>“5. Because the master allowed a witness upon a material point to refresh his recollection as to what happened some weeks before, from the memorandum made fifteen minutes before the witness testified.”</p> <p>The plaintiff’s motion for a final decree granting a permanent injunction was heard by Callahan, J., who made the following memorandum of findings of fact:</p> <p>“I find that since the entry of the decree for a temporary injunction that of the defendants those whose names are signed to the letter hereinafter mentioned, members of Local No. 214 and Local No. 682, International Association of Machinists, have notified the plaintiff, by mailing to it the following letter, of their renunciation of their combination or conspiracy to interfere with the plaintiff’s business, for the purpose of compelling the plaintiff to maintain a so called ‘closed shop’ and of their purpose of in any manner carrying on, aiding or abetting the strike declared in pursuance of said combination or conspiracy against the plaintiff for that purpose.</p> <p>“ ‘Springfield, Mass., Nov. 22, 1917.</p> <p>“ ‘We the undersigned members of Local No. 214 and Local No. 682 International Association of Machinists do hereby renounce and have renounced the closed shop principle, so-called, and any other unlawful object in connection with the Baush Machine Tool Co. strike and the maintenance thereof.</p> <p>Wm. A. Fronk William J. Bousquet</p> <p>David H. Hatch Chas." 'Johnston</p> <p>Geo. W. Loyd JohnBrobery (his mark)</p> <p>Andrew Soitzer Witness John F. Jennings</p> <p>Walter Worden , Leland E. Breyer</p> <p>Fred A. Thompson Lafayette B. Price</p> <p>John D. Neilan</p> <p>Geo. M. Hayes</p> <p>George Cloutier</p> <p>Alcide Bourdear</p> <p>Andrew Grimes</p> <p>Leon Soland</p> <p>Clarence W. May</p> <p>William J. Murphy</p> <p>Charles J. Hill</p> <p>Benjamin, Cohan</p> <p>Jno. W. Oliver</p> <p>Joseph Wm. Allard</p> <p>John J. ICinetter</p> <p>F. J. Carlin</p> <p>Roy Quigley</p> <p>Emil Trempke</p> <p>Fred Keating’”</p> <p>The judge ordered the entry of a final decree as follows:</p> <p>“This case came on to be further heard at this sitting, and, after a finding of fact by the court, memorandum of which has been filed, was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed, That a permanent injunction issue, restraining the following defendants: William A. Frohk, David H. Hatch, George W. Loyd, Andrew Soitzer, Walter Worden, Fred A. Thompson, John A. Neilan, George M. Hayes, George Cloutier, Alcide Bourdear, Andrew Grimes, Leon Soland, Joseph William Allard, John J. Kinetter, William J. Bousquet, Charles Johnston, John Brobery, Leland E. Breyer, Lafayette B. Price, Clarence W. May, William J. Murphy, Charles J. Hill, Benjamin Cohan, Jno. W. Oliver, F. J. Carlin, Roy Quigley, Emil Trempke and Fred Keating, their agents, servants and confederates, and each and every of them, from combining or conspiring together to interfere with the plaintiff’s business, for the purpose of compelling the plaintiff to maintain a so called ‘closed shop,’ or to limit the number of apprentices it might employ in carrying on its business, or in any manner aiding or abetting the carrying on for those purposes of the strike declared against the plaintiff; restraining all other defendants, their agents, servants and confederates, and each and every of them, from carrying on, aiding or abetting, in any manner whatsoever said strike for any purpose; and restraining the persons whose names are hereinbefore mentioned from intimidating, annoying or threatening any person now or hereafter in the employment of the plaintiff, or desirous of entering the same, and maliciously inducing any persons now or hereafter in the employment of the plaintiff to leave the same, or from inducing or attempting to induce any person or persons now or hereafter in the employment of the plaintiff to break any contract of employment with the plaintiff, and from congregating in squads near the plaintiff’s premises in any other than a peaceful manner.”</p> <p>Both the plaintiff and the defendants appealed from the decree.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 29, 1917, by the beneficiary for life entitled to receive the income from a trust fund held by the defendants Cotting and Dexter under a deed of trust recorded with the Suffolk deeds, setting forth the facts which are stated in the opinion, and praying (1) that the trustees may be ordered to account to the plaintiff for a cash dividend of $9,400 as income of the trust fund, and to pay over the same to her, or to turn over to her her share of the ninety-four shares of stock of the Old Colony Trust Company bought by them with such cash dividend or so much of these as represent such cash dividend; (2) that the trustees may be ordered to account to her for the dividend of twenty-two and six tenths shares of stock of the American Trust Company as income of the trust fund, and to pay over the same to her and (3) for further relief.</p> <p>The case came on to be heard before Be Courcy, J., who at the request of all the parties reserved it upon the pleadings and an agreed statement of facts, so far as these might be found to be competent and material, for determination by the full court, such order to be made as justice and equity might require.</p>

<p>Five actions of tort against the owners, as trustees, of an office building numbered 101 on Tremont Street in Boston called the Paddock Building, the first four actions being for personal injuries sustained by the respective plaintiffs on July 9, 1915, while in a passenger elevator in the building, and the fifth'being by the husband of the plaintiff in the first case for expenses incurred on account of the injuries sustained by his wife. Writs dated June 8, 1916, August 13 and December 18, 1915, and August 30, 1916.</p> <p>In the Superior Court the cases were tried together before Chase, J. The evidence and the exceptions taken at the trial to the admission of certain evidence are described in the opinion. At the close of the evidence the defendants asked the judge to order verdicts for them in each of the cases. The judge refused to do this, and thereupon the defendants asked the judge to make the following rulings, besides others that were made by the judge as requested:</p> <p>“4. If at the commencement of the tenancy of the tenant, the Workingmen’s Co-operative Bank, the elevator in question was equipped with the instantaneous type of safety device, the defendants as landlords owed no duty to change that type of safety device; to that extent at least the tenant took the premises as it found them.</p> <p>“5. If at the commencement of the tenancy of the tenant, the Workingmen’s Co-operative Bank, the elevator in question was equipped with the instantaneous type of safety device, and if the jury believe that, even though that type of safety device is properly adjusted, it may work unevenly in the sense that one side catches on the guide rail before the other, the defendants are guilty of no breach of duty in the use of such type of safety [device^.</p> <p>“6. If at the commencement of the tenancy of the tenant, the Workingmen’s Co-operative Bank, the elevator in question was equipped with the instantaneous type of safety device, the defendant landlords owed no duty to- change that type of device for another type, as for example, the compression type, even .though the jury may believe that the instantaneous type of safety device was unsuitable for an elevator such as was elevator No. 4.</p> <p>“ 7. In any event, if the jury believe that the elevator in question was installed by a reputable dealer in elevators and when so installed was equipped with such safety devices or other apparatus as required by law, and that, after such installation, the defendants by a suitable system of inspection exercised reasonable care to keep the elevator in a reasonably safe condition, the defendants' are not liable to the plaintiffs.”</p> <p>“9. There being no dispute that, at the commencement of the tenancy of the tenant, the Workingmen’s Co-operative Bank, the elevator was equipped with the instantaneous type of safety device, the plaintiffs cannot hold the defendants responsible for any injuries arising out of the ordinary use of such type of device.</p> <p>“ 10. If the defendants had installed upon the elevator in question such speed governors and safety devices as are called for by law, no duty existed to furnish any other governors or safety devices.</p> <p>“11. The defendants owed no duty to furnish any better or safer or other safety device than that required by law, that is, by the elevator regulations framed by the board of elevator regulations.</p> <p>“12. If the defendants had installed upon the elevator in question such speed governors and safety devices as were called for by the elevator regulations and if the defendants exercised a reasonable degree of care in seeing that the elevator as thus equipped was kept in repair and suitable condition for safe operation, the defendants discharged their full duty.”</p> <p>“ 14. If the jury believe that the plaintiffs’ accident came about because the safety device operated as it would reasonably be expected to operate, no liability attaches to the defendants.</p> <p>“ 15. It is only in case the jury believe that the accident to the plaintiffs happened because the defendants failed to exercise reasonable care in keeping the elevator with its devices as actually installed at the commencement of the tenancy of the tenant, the Workingmen’s Co-operative Bank, in the condition in which it then was or appeared to be, that the defendants are liable.</p> <p>“ 16. If the jury believe that the safety device was tripped for some reason which could not be discovered by a reasonably careful inspection, no liability attaches for injuries resulting from the operation under such circumstances of the safety device.</p> <p>“ 17. The doctrine of res ipso loquitur has no application to the case at bar.</p> <p>“18. The plaintiffs may rely upon the doctrine of res ipso loquitur only if the jury believes that they have made an unsuccessful attempt to prove by direct evidence the precise cause of the actíident.</p> <p>“ 19. The defendants’ duty in respect to the elevator in question is that of due care, to keep it in such condition as it was in or purported to be in at the time of the letting, but they are not bound to change the mode of construction.</p> <p>“20. If, at the time of the letting, the elevator was equipped with the instantaneous type of safety device, the defendants were not bound to change that mode of construction and substitute some other form of safety device.”</p> <p>“22. If the jury believe that over a course of years from 1901 or 1902 to 1915 the elevator in question had safely carried thousands of passengers, making daily in the vicinity of three hundred safe round trips, the jury are warranted in believing that the defendants have furnished a reasonably safe elevator.</p> <p>“23. If tire jury believe that before the accident to the plaintiffs the elevator had been daily in constant successful operation, without accident or any interruption which would reasonably cause apprehension of any imperfection in device or safeguards against accident, the jury are warranted in believing that the defendants have furnished a reasonably safe elevator.”</p> <p>The judge refused to make any of these rulings except so far as they were embodied in his charge to the jury, the material parts of which are described in the opinion. The defendants excepted “to that part of the charge which submits to the jury on the evidence the fact, as bearing upon the defendants’ negligence, that-there were other devices for cars for high rates of speed which the defendants might have used.”</p> <p>They also excepted “to that portion of the charge which submits to the jury the question as to whether or not the defendants were exercising reasonable care in not having another form of device.”</p> <p>They also excepted “to that portion which left it for the jury to say whether the defendants should have discarded the old for the new, and that it was all a question of due care as to the kind of device,” and “to that portion of the charge in which the jury were told that, if the device operated as intended, the defendants might still be liable.”</p> <p>The defendants also excepted to the “illustration about the automobile.”</p> <p>They also excepted “to that portion of the charge in which the jury were told that merely because the device operated as intended and thus prevented more serious injury, this would not absolve the defendants from blame if they were negligent in causing the device' to be put into operation.”</p> <p>They also excepted to a portion of the charge to the effect, that, “even if the device was in perfect operating condition and did operate and no negligence existed, and the device operated properly, if the defendants negligently caused- the car to descend at such speed as to make it dangerous to operate the device, the defendants are liable.”</p> <p>They also excepted “to the use of the illustration dealing with the safety switch on the railroad line.”</p> <p>They also excepted “to that portion of the charge which says, the doctrine- of res ipso loquitur applies.”</p> <p>The jury returned a verdict for each of the plaintiffs, for the plaintiff Lillian A. Draper in the sum of $4,000, for the plaintiff John J. Callahan in the sum of $2,500, for the plaintiff Charles E. Callahan in the sum of $5,500, for the plaintiff Patrick J. Hartnett in the sum of $1,000 and for the plaintiff Edward Draper in the sum of $150. The defendants alleged exceptions.</p> <p>Another action for injuries received in the same accident is described in Waters v. Catling, 227 Mass. 405.</p>

<p>Tort or contract for injuries sustained by the plaintiff in attempting to eat foreign matter furnished to her as food at the defendant’s restaurant in Boston on July 12,1915, the declaration containing a count in tort for personal injuries and a count in contract, which is quoted below. Writ dated December 4, 1915, and amended on January 2, 1917, by adding the words “or contract.”</p> <p>The second count, on which the plaintiff elected to rely, waiving her first count, was as follows: “ Count 2. Now comes the plaintiff in the above entitled action and says that the defendant corporation owned, conducted and managed a dining hall or lunch room in Boston, County of Suffolk; and was there doing business with and for the accommodation of the public; that on or about July 12, 1915, on the request and invitation of the defendant in its said lunch room the plaintiff ordered and bought of said defendant and said defendant sold and delivered to the plaintiff certain food for the'purpose and with the express understanding that said food was to be then and there eaten by the plaintiff; that in consideration of the price agreed to be paid and actually paid by said plaintiff for said food, the defendant promised and under implied warranty represented that said food furnished was and would prove to be in a good and wholesome condition and fit to eat; that the plaintiff relied on the defendant’s skill and judgment in the selection and preparation of said food then and there paid for and ate said food-that said food so selected, delivered and furnished by said defendant for the purpose of being eaten by said plaintiff, was not in a wholesome condition and fit to eat but was unwholesome, contained foreign matter and was otherwise unfit to be eaten whereby the plaintiff in the exercise of due care while eating said food was injured, was made sick, suffered pain of- body and anguish of mind, was put to expense for medicines, dental and medical treatment, was unable to perform her usual labor and was'otherwise put to loss and damage.”</p> <p>The answer contained a general denial, and also alleged that the plaintiff at the time of the alleged injury was not in the exercise of due care.</p> <p>In the Superior Court the case was tried before Bell, J. The plaintiff’s evidence is described in the opinion. At the close of the plaintiff’s evidence, the defendant asked the judge to order a verdict for it. Whereupon the judge with the consent of the parties reported the case for determination by this court and, the parties agreeing upon $150 as the amount of the damages, the judge ordered the jury to return a verdict for the defendant, with leave reserved, with the consent of the jury, to enter a verdict for the plaintiff for $150 if this court should decide that the ordering of the verdict was wrong and that the plaintiff was entitled to recover; otherwise, the verdict for the defendant was to stand.</p> <p>St. 1908, c. 237, § 15, begins as follows:</p> <p>“Section 15. Subject to the provisions of this act and of any other statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:</p> <p>“ (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.</p> <p>“ (2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.</p> <p>“ (3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.”</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff on July 8, 1915, by reason of the defendant’s negligence in serving to the plaintiff as food a piece of blueberry pie in which a nail or tack was concealed. Writ dated February 16, 1916.</p> <p>The plaintiff’s declaration was as follows: “And the plaintiff says the defendant is a corporation duly established by law and conducts dining halls in Boston, selling food to customers; that on or about July 8, 1915, while, she was a customer of the defendant company, eating in a dining hall of said defendant, to wit at 269 Washington Street, and while lawfully upon the premises, and while in the exercise of due care, she was injured by reason of a nail which was in a piece of pie she Was eating becoming stuck in her throat; that she could not see the nail and had no knowledge of its being in said pie; that it was the duty of the defendant company to provide food that is safe for customers to eat, but that, unmindful of its duty the defendant, by its servants and agents, carelessly and negligently permitted said nail to get into said pie. And the plaintiff says that by reason of said injury, she has been put to great expense for nursing, medicines and medical attendance, and has suffered greatly both in mind and body, to her great damage.”</p> <p>The answer contained a general denial and also alleged that the plaintiff was not in the exercise of due care at the time of the alleged injury.</p> <p>In the Superior Court the case was tried before tlhase, J. The evidence is described in the opinion.</p> <p>At the close of the evidence the judge asked the counsel for the plaintiff, “Are you prepared to go to the jury on the pleadings as they stand?” and the counsel answered, “Yes.” The defendant then asked the judge to order a verdict for the deféndant upon the ground that on all the evidence the plaintiff was not entitled to recover. The judge refused to do this, and the defendant then asked the judge to instruct the jury as follows:</p> <p>“1. That on all the evidence there should be a verdict for the defendant.</p> <p>“2. That the plaintiff has not sustained the,burden of proof that the defendant was negligent.”</p> <p>“5. That the evidence does not warrant a finding that the defendant was negligent.”</p> <p>“7. That the fact, if it be a fact, that the food furnished the plaintiff contained a deleterious foreign substance is not of itself evidence of negligence sufficient to warrant a finding for the plaintiff.</p> <p>"8. That the fact, if it be a fact, that the food furnished the plaintiff contained a deleterious foreign substance is not of itself evidence sufficient to charge the defendant with knowledge of the presence of the substance so as to make the defendant liable.”</p> <p>The judge refused to give any of these instructions and submitted the case to the jury. The close of the judge’s charge was as follows: "The defendant is not liable merely because the tack was there, if it was there. It is not liable unless the tack was there and had not been discovered and taken out through negligence. The question is whether you think you ought as reasonable men to infer negligence from the presence of the tack in the pie if there is no other explanation of it. The question is for you.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $150; and the defendant alleged exceptions.</p>

<p>Sale, Implied warranty. Food. Evidence, Matters of common knowledge.</p> <p>Under the provision of the sales act contained in St. 1908, c. 237, § 15 (1), which in this respect is declaratory of the common law, a dealer who sells for food to a customer a sealed can of baked beans containing among the beans a pebble that looks like a bean, which breaks a tooth of the purchaser, can be found to be liable to the purchaser in an action of contract for his injuries thus sustaine'd, there being in such a sale by a dealer, under the statute as at common law, an implied warranty that beans so purchased for food “shall be reasonably fit for such purpose.” Crosby, J., dissenting.</p> <p>It was said that it is a matter of common knowledge that pebbles often are found in raw and uncleaned beans.</p>

<p>Petition, filed in the Supreme Judicial Court on January 7, 1916, by the members of the minimum wage commission established under St. 1912, c. 706, amended by St. 1913, cc. 330, 673, and St. 1914, c. 368, for an order of the court compelling certain witnesses to testify before the commission.</p> <p>The case was heard by Braley, J., who found that the facts as proved or admitted were as stated in the findings of fact annexed to his report. The counsel for the respondents asked “that the right to try out the question of the regularity of the proceedings precedent to the establishment of the laundry wage decree by the minimum-wage commission be reserved without prejudice for determination in any other proceeding,” The single justice granted this request. The counsel for the respondents then asked the single justice to rule that the minimum wage commission statutes, St. 1912, c. 706, and acts in amendment thereof, were unconstitutional. The justice refused so to rule, and ordered process to issue as prayed for. At the request of the respondents he reported all questions of law involved for determination by the full court.</p>

<p>Bill in equity, finally filed in the Supreme Judicial Court in its amended form on September 21, 1917, by a stockholder of the Merchants Legal Stamp Company, a business corporation organized under the laws of this Commonwealth, containing the allegations described in the opinion and praying for the following relief: "1. That the individual defendants be enjoined from continuing to manage the affairs and conduct the business of the stamp company in violation of St. 1908, c. 454, or anyother law or laws of this Commonwealth, and from imposing or enforcing in the management of its business or in the sale or distribution of stamps any restrictions which are in violation of said laws.</p> <p>“2. That the individual defendants be enjoined from refusing to supply said Houghton and Dutton^ Company or any other merchants with stamps on reasonable and lawful terms under the pretence or upon the ground that they are authorized in such refusal by the terms of paragraph 7 of contract ‘A.’</p> <p>“3. That an account be taken of the loss of lawful profits which the stamp company has suffered since January 1, 1915, by reason of the said illegal conduct of the defendant directors, and that the directors be ordered to pay the amount of such losses to the Stamp Company.</p> <p>“4. For such further and general relief as to the court shall seem meet.”</p> <p>Also another</p> <p>Bill in equity, filed November 5, 1917,.between the same parties except that the Ginter Grocery Company, the beneficial owner of the shares of the defendant corporation held by the .plaintiff Duane, was joined as a plaintiff, the allegations being described in the opinion. The relief prayed for was as follows:</p> <p>“1. That the defendants be ordered by this honorable court to recognize the rights of the plaintiff Duane as a stockholder in said corporation, and to receive in common with other stockholders dividends in the proportion of his stock holdings.</p> <p>“2. That an accpunt be taken of the profits and dividends which have been divided by the defendant corporation between its stockholders under the pretended authority of said contracts CA’ and ‘B’ since January 18, 1915, and that the defendants be ordered to pay to- the plaintiff Duane on account of such profits the dividends to which he is entitled as such stockholder.</p> <p>“3. That the defendants be enjoined from distributing the profits of'the business among the stockholders in proportion to the purchase of- the stamps by them or the firms or corporations which they represent, and be enjoined from making any distribution of such" profits until the further order of this court.</p> <p>“4. Thai the defendants be enjoined from continuing to manage the affairs and business of the corporation ip. violation of the laws of this Commonwealth or in violation of St. 1908, c. 454.</p> <p>“ 5. That in the meantime, until the further order of this court, a receiver for the defendant corporation be appointed by this honorable court to hold possession of its property and to manage its affairs and business in accordance with the laws of this, Commonwealth and under the court’s direction.”</p> <p>These are in substance the same as the prayers contained in the bill filed on June 10, 1916; which was before this court when the’ decision reported in 227 Mass. 466 was made.</p> <p>In each of the suits the defendants demurred to the bill as amended, and the cases were heard upon the demurrers by Be Courcy, J., who in each of the suits made an order that the demurrer be sustained and the bill be dismissed, and thereupon, at the request of the parties, reported the cases for determination by the full court.</p>

<p>Contract, the declaration, which originally was in two counts, having been amended by a substituted declaration which was filed at the time of the trial. Writ dated January 8, 1914.</p> <p>The substituted declaration was as follows:</p> <p>“And the plaintiff says that it is a holder in due course of a promissory note made by the defendant, a copy of which is hereto annexed marked 'A’; that before maturity the said note was indorsed to the plaintiff, who is now the holder thereof.</p> <p>“The plaintiff says that said note became due and payable October 12, 1913; and that payment thereof was duly demanded and refused.; that on June 1, 1915, the plaintiff was paid the sum of six thousand (6,000) dollars being the principal due on said note, but that the interest thereon has not been paid either in whole or in part.</p> <p>“Wherefore, the defendant owes the plaintiff interest on six thousand (6,000) dollars from October 12, 1913, to June 1, 1915, together with interest on such sum from June 1, 1915, to date, and with protest fees.”</p> <p>The copy of the note marked “A” was as follows:</p> <p>“$6,000 Boston, June 12, 1913.</p> <p>Four months after date I promise to pay to the order' of</p> <p>Francis W. Lavery.........................................</p> <p>Six Thousand.............................. 00/100 Dollars</p> <p>Payable at Paul Revere Trust Co., Boston, Mass.</p> <p>Value Received</p> <p>No. Due.</p> <p>Henry Castle,</p> <p>45 Milk St., Boston»</p> <p>Protested for non-payment Oct. 14/T913 fees $2.04 ’</p> <p>Whitford Hunter, Notary Public.”</p> <p>The defendant’s amended answer to the substituted declaration is described in the opinion. It concluded as follows:</p> <p>“And further answering the defendant says that on the seventh day of June, 1915, said date being the first Monday of June, 1915,. said defendants, John W. Lavery and Francis W. Lavery, paid to the plaintiff the sum of six thousand (6,000) dollars in accordance-with the terms and conditions of their said agreement [mentioned in the opinion] and said sum of six thousand (6,000) dollars was taken, accepted and received by the plaintiff under and by virtue of said agreement, but the plaintiff, in violation of its said agreement, refused to cause an entry of judgment satisfied to be made in the said action of the plaintiff against Francis W. Lavery and John W. Lavery; that said action went to judgment on the first Monday of June, 1915, and has been satisfied by the receipt and acceptance by the plaintiff of said sum of six thousand (6,000) dollars, according to said agreement and that said satisfaction is a bar to the action now pending between the parties hereto.”</p> <p>In the Superior Court the case was heard by Hitchcock, J., without a jury. The bill of exceptions contained the following; statement: “To expedite the trial of said action, it was agreed by the counsel for the parties in open court that for the purposes of this case all the allegations contained in the defendant’s amended answer are to be taken as true and to be so considered by the court, and in this agreement the court acquiesced. No other evidence was offered except the promissory note, a copy of which is annexed to the plaintiff’s substitute declaration, which note bears the indorsements ‘Francis W; Lavery’ and ‘John W. Lavery & Son’ as alleged in the defendant’s amended answer.”</p> <p>The judge refused to rule at the request of the defendant that the action could not be maintained, and found for the plaintiff in the sum of $663.65. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act. Agency, Existence of relation.</p> <p>A driver in the general employ of an ice company was let for hire by the ice company with a pair of horses and a wagon to a coal company, by which he was employed to load and deliver coal, brick, wood, lime and cement and sometimes was given a helper in loading and in making deliveries. He took his orders from the office of the coal company and was told by one of the clerks employed there where to deliver his loads. He received his pay from the ice company and was expected by that company to look out for the horses and the wagon in his charge. Otherwise he was wholly under the direction and control of the coal company. When he was loading soft coal into a tip cart in the yard of the coal company he accidentally was hit on the wrist with a shovel by the man who was helping him and was injured. Both the ice company and the coal company were insured under the workmen’s compensation act. For the injury above described the Industrial Accident Board awarded the driver compensation to be paid by the insurer of the ice company. On appeal from a decree affirming this award, it was held that the driver at the time of his injury was acting as an employee of the coal company and not as an employee of the ice company, and , it was ordered that the decree should be reversed.</p>

<p>Damages, For property taken or impaired by statutory authority. Way, Public. Practice, Civil, Amendment of docket entry, Agreed statement of facts. Res Judicata. Abatement. Judgment. Words, “Notice.”</p> <p>A judge of the Superior Court has power to make an order mine pro tune to amend past docket entries to accord with the facts.</p> <p>A statement in an agreed statement of facts presented to this court in a report of a petition for the assessment of damages caused by the repair of a public way by a city, that in a previous proceeding for the assessment of the same damages “ a certain notice ” which it was necessary that the petitioner should ■ give to the mayor and aldermen “was insufficient,” was construed to refer to the omission to file with the mayor and aldermen a “ petition for compensation,” which by R. L. c. 51, §§ 15, 16, is a necessary preliminary to a petition for the assessment of the damages by a jury.</p> <p>A plea in abatement to a petition for an assessment of damages caused by the repair of a public way based on the pendency of an earlier petition for the same damages must be overruled, where it appears that in the previous proceedings a verdict was returned for the respondent with leave to the petitioner to present exceptions to this court, that no exceptions ever were filed and that judgment was entered for the respondent, so that the earlier petition was not pending when the second one was brought.</p> <p>An order of the Superior Court dismissing a petition under R. L. c. 51, §§ 15, 16, for the assessment of damages caused to the petitioner’s land by repairs upon a public way on which the land abuts, made on the ground that no petition for compensation had been filed with the mayor and aldermen “after the commencement and within one year after the completion of the work” which caused the alleged damage, as required by the statute, is not a bar to a new petition for damages to the petitioner’s land caused by the same repairs which is filed after a compliance with the requirements of the statute.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 19,12, c. 571, § 14, from a decision of the Industrial Accident Board making the finding which is quoted in the opinion and dismissing the claim of Ida Knight as the dependent widow of Edson Knight.</p> <p>The case was heard by Lawton, J., who made a decree that the claim for compensation be dismissed. The dependent widow appealed.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Dependency.</p> <p>Under St. 1911, c. 751, Part II, § 7, as amended by St. 1914, c. 708, § 3, a child under eighteen years of age by a former husband of the widow of a deceased employee, who was a member of the employee’s family at the time of his death, not being one of his next of kin, cannot receive compensation as a dependent.</p> <p>Under St. 1911, c. 751, Part II, § 7, as amended by St. 1914, c. 708, § 3, a child under eighteen years of age of a deceased employee by a former wife, having therefore no surviving parent, who was not living with the deceased employee at the time of his death, is conclusively presumed to have been wholly dependent upon his father for support; and, where there are also a surviving widow and a child of her and the deceased employee, who were living with the employee at the time of his death, the compensation under the workmen’s compensation act is to be awarded in equal shares to the widow and the two mentioned children of the employee, the third part due to the child of the widow to be paid to the widow, and the third part due to the child by the former wife to be paid to his guardian.</p>

<p>Sewer. Waiver. Estoppel. Damages, For property taken or impaired under 'statutory authority.</p> <p>A claim of a landowner against a town for damages for the taking of an easement in his land Jor the construction of a sewer is a chose in action which does not pass by a deed of the land.</p> <p>Where an easement in land for the construction of a sewer is taken by a town without giving notice of the taking as required by statute and without filing the layout as also required by statute, and where the landowner had actual notice of the vote of the selectmen to construct the sewer, which was passed at his request, and subsequently appeared before the selectmen and said to them that he “was very anxious for the sewer” and “would claim no damages,” and where his land was benefited by the sewer and he and his heirs for seventeen years after the construction of the sewer never questioned the regularity of the proceedings under which it was constructed, there has been a waiver of any right on the part of the landowner to object to the maintenance of the sewer in his land, and his successor in title cannot maintain a suit in equity against the town to enjoin the maintenance of the sewer or to recover damages for its maintenance.</p>

<p>Negligence, In maintaining elevator, Of one controlling real estate. Elevator.</p> <p>In an action by an administrator against the proprietor of a hotel for causing the death of the plaintiff’s intestate by negligence in the maintenance and operation of an elevator in which a night watchman of the defendant had started to take the intestate to his room as a guest at the hotel, there was evidence on which it could have been found that a rear door of the elevator was open at the time the elevator was started and remained open up to the time of the accident and that the failure to close this door contributed to the happening of the accident and was negligence on the part of the defendant. There also was evidence that the defendant had violated certain regulations made by the board of elevator regulations under St. 1913, c. 806, that the license of the defendant’s night watchman to operate an elevator had expired and that it had not been renewed at the time of the accident and that the elevator was not equipped, as required by the regulations, with an interlocking device that would prevent the operation of the elevator unless the door was closed. It could have been found that these violations of the regulations, which constituted a penal offence, contributed to the happening of the accident. Held, that, due care on the part of the plaintiff’s intestate being presumed under St. 1914, c. 553, the case properly was submitted to the jury.</p> <p>In the case above described it was said that it was not necessary to consider, whether without the presumption created by the statute there would have been evidence of due care of the plaintiff’s intestate.</p>

Tort by the executrix of the will of George E. Hunt, a coal dealer in Worcester, for causing the death and conscious suffering of the plaintiff’s testator on December 24, 1915, when the testator had gone with one of his teams to supervise the delivery of some coal ordered by the defendant, a corporation engaged in manufacturing machinery. Writ dated January 12, 1916. In the Superior Court the case was tried before Morton, J. The evidence is described in the opinion.

<p>Bill in equity, filed in the Superior Court on August 10, 1916, by Mary A. Clark, the wife of Byron Clark, against Frank J. Young and William R. Williams, containing the allegations described in the opinion and praying for an accounting between the plaintiff and the defendant Young as to the amount due to the plaintiff from that defendant, also praying for a decree that the instrument purporting to be a discharge of a mortgage signed by the plaintiff be cancelled, that the plaintiff’s mortgage be declared to be prior in time and right to the mortgages held by the defendant Williams and that the defendant Williams be enjoined from foreclosing or attempting to foreclose either of the mortgages held by him.</p> <p>The case was referred to a master, who made a report containing the findings which are described in his opinion. The plaintiff filed exceptions to the master’s report and also filed a motion that the report be recommitted to the master with certain instructions.</p> <p>The exceptions and the motion were heard by Wait, J,, who denied the motion to recommit the master’s report and made an order overruling the plaintiff’s exceptions and confirming the master’s report. Later by order of the judge a final decree was entered ordering that the' plaintiff’s bill be dismissed, and ordering, in accordance with a stipulation of the parties, “that, if the decrees overruling the plaintiff’s exceptions, confirming the master’s report and dismissing the plaintiff’s bill be finally-affirmed, the plaintiff shall thereupon execute and deliver to the defendant Young, or to his attorney of record, a discharge of the mortgage given by the defendant Frank J. Young to the plaintiff, Mary A. Clark, dated February 1, 1909.” The plaintiff appealed.</p>

<p>Negligence, Street railway, Motor vehicle. Motor Vehicle.</p> <p>In an action against a street railway corporation for personal injuries caused by a collision between an electric street railway car of the defendant and a motor car driven by the plaintiff, there was evidence that the plaintiff had backed Ms car from a garage on a city street across the sidewalk and into the street and was in the act of turning Ms car to go forward on the street when it was struck by the street railway car of the defendant, gomg in the same direction in wMch the plaintiff was about to go, and was forced diagonally across the sidewalk, that the plaintiff was obliged to back out of the garage and to go as far as the defendant’s track before turmng, that the accident happened at a “rush hour” when street railway cars were passing or approacMng the garage [in “almost a continuous chain,” that the nearest rail of the defendant’s tracks was only twelve feet away from the curb line of the sidewalk, that when the plaintiff was on the sidewalk he looked and saw the defendant’s car more than four hundred and forty feet away, that when he reached the gutter he looked again and saw the defendant’s car about four hundred feet distant and knew that he “had plenty of time,” but that, when he had stopped looking and was about to go forward, the defendant’s car came upon him at great and unusual speed and without warning. There was ample evidence of the negligence of the defendant’s motorman. Held, that under St. 1914, c. 553, it could not be ruled as matter of law that the defendant had proved that the plaintiff was negligent.</p> <p>In the same case it was said that, although it was the plaintiff’s duty to exercise reasonable care for his own safety at this dangerous place, yet he well might rely to some extent on the expectation that the motorman would act with due regard to the safety of others lawfully using the street.</p>

<p>Two actions of tort by the executrix of the will of John B. Anger, late of Worcester, the first for causing the death of the plaintiff’s testator, and the second for causing his conscious suffering, by running into him with a street railway car of the defendant at about eighteen minutes past six o’clock in the afternoon of September 24,1916, near Prospect Park in the town of Auburn in the county of Worcester. Writ dated November 2, 1916.</p> <p>In the Superior Court the cases were tried together before Bell, J. The evidence is described in the opinion. At the close of the evidence the judge on motion of the defendant ordered a verdict for the defendant in each of the cases. The plaintiff alleged exceptions.</p>

<p>Tort for personal injuries sustained on the evening of July 19, 1916, by reason of being struck by an electric street railway car of the defendant when the plaintiff was standing near a white post a few yards from the car barn at Lake Quinsigamond waiting for the car to stop. Writ dated September 16, 1916.</p> <p>In the Superior Court the case was tried before Morton, J., who at the close of the evidence, which is described in the opinion, ordered a verdict for the defendant and by agreement of the parties reported the case for determination by this court with a stipulation that, if the ordering of the verdict was right, judgment should be entered for the defendant on the verdict; otherwise, judgment was to be entered for the plaintiff in the sum of $600.</p> <p>The case was submitted on briefs.</p>

<p>Nuisance. Negligence, Street railway, Unlawful obstruction of highway. Way, Public. Workmen’s Compensation Act. Election.</p> <p>In an action by a teamster against a street railway corporation for personal injuries from being thrown from a wagon when the horse he was driving shied at the canvas cover of a rail grinding machine of the defendant that had been left standing on one of its tracks in a public highway, there was evidence that, the machine was heavy and cumbrous and had been used in grinding joints of the defendant’s rails in another street and then, instead of being placed in the defendant’s storage house, which was easily accessible, had been moved to this street and left there from Saturday until Monday and that the accident happened on Sunday, that an ordinance of the city in which the accident occurred provided that no person should place any obstruction of any kind in any highway or street “without a written license from the street commissioner” and that the defendant had obtained no such license. Held, that the question, ' whether the machine made the street dangerous to travellers, was for the jury, and that, if the jury found that the machine constituted an obstruction in the highway, the defendant’s failure to procure a license was evidence of its negligence, and that the question of the defendant’s liability was for the jury.</p> <p>By St. 1911, c. 751, Part III, § 15, as amended by St. 1913, c. 448, if an employee whose employer is a subscriber under the workmen’s compensation act sustains an injury in the course of and arising out of his employment “under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the association for compensation under this act, but not against both.” An employee having received such an injury under the circumstances described in the statute, who was not shown to have been ignorant of his rights or to have lacked knowledge of all material facts, brought an action of tort against a street railway corporation to recover damages for his injury and afterwards gave notice to the insurer of his employer that he claimed compensation for his injury under the workmen’s compensation act. Held, that the bringing of the action at law by the employee before he gave notice to the insurer of any claim for compensation was an election by which both the employee and the defendant in the action at law were bound, and that the plaintiff’s right to recovery was not barred by his subsequent notice under the workmen’s compensation act.</p> <p>Tn the case above described it was said that, the plaintiff’s election of remedy having been complete before his notice to the insurer of his employer, it was not necessary to consider whether a subsequent notice of withdrawal to the insurer operated as a waiver of the claim to compensation.</p>

<p>Three actions of contract by the administrators of the estate of Karl W. Leaf, late of Quincy, each on a policy insuring 'the life of the plaintiff’s intestate. Writs dated April 30, 1917.</p> <p>In the Superior Court the cases were tried together before Morton, J. At the close of the evidence the judge submitted to the jury in the two eases against the Mutual Life Insurance Company of New York the question, “Did the deceased, Karl Leaf, commit suicide?” The jury answered, “No.” In the case against the Travelers Insurance Company the judge submitted to the jury the question, “Was the deceased Karl W. Leaf’s death due to accident?” The jury answered, “Yes.” Thereupon the judge ordered verdicts for the plaintiffs, in the first case in the sum of $3,358.56, in the second case in the sum of $2,238.16 and in the third case in the sum of $8,396.28. Thereafter each of the defendants filed a motion for a new trial on the ground of newly discovered evidence. The motions were heard by Morton, J. The evidence presented at the hearing is described in the opinion. At the close of the hearing the plaintiffs in each of the cases asked the judge to make the following rulings:</p> <p>“1. Upon the motion in each case, the affidavits in support thereof, the counter-affidavits and the oral testimony received at the hearing, the motion as filed in each case should be denied.</p> <p>“2. Upon the motion in each case, all the supporting affidavits, the counter-affidavits and the oral testimony received at the hearing, the motion in each case, upon the exercise of a sound judicial discretion of the court, should be denied.”</p> <p>The judge refused to make either of these rulings. He made an order in each case granting the motion for a new trial, and filed a statement of findings and rulings, containing those that are described in the opinion. The plaintiffs excepted to the judge’s rulings and refusals to rule and to the orders granting a new trial and asked that the cases be reported to this court. The judge, being of opinion that his rulings and orders ought to be determined by this court before any. further proceedings in the Superior Court, reported the cases for such determination.</p>

<p>Contract for the alleged breach of an agreement to employ for one year the plaintiff as a farm hand and his wife in the house on the defendant’s farm. Writ in the Second District Court of Eastern Worcester dated May 3,1916.</p> <p>The declaration was as follows: “And the plaintiff says that on April 1, 1915, he entered into an oral agreement with the defendant by which the plaintiff was to do general farm work for the defendant for a term of one year and was to provide the services of his wife in general work about the defendant’s house in so far as such services were needed; and in consideration thereof the defendant was to pay the plaintiff sixty (60) dollars per month and was to furnish the plaintiff with board and lodging for himself, his wife and two children for the term of one year from April 1,1915, which said board and lodging was worth sixty dollars additional per month; that on or about August 1,1915, the defendant without right discharged the plaintiff and caused himself, his wife and children to remove from the defendant’s premises, thereby breaking his agreement with the plaintiff; that thereby the plaintiff has been damaged in the sum claimed in his writ.”</p> <p>On appeal to the Superior Court the case was tried before Sanderson, J., without a jury. The evidence and the findings of the judge are described in the opinion. At the ;close of the evidence the defendant asked the judge to make the following rulings and findings:</p> <p>“1. Upon all the evidence in the case the plaintiff is not entitled to recover.”</p> <p>“5. On all the evidence in the case the plaintiff has failed to prove that he was wrongfully discharged by the defendant.</p> <p>“6. Even if the court should find a contract of employment for a definite period of time, in order to recover, the plaintiff must show that at all times during his employment he acted in a respectful and proper manner towards the defendant.</p> <p>“7. On all the evidence it appears that on or about July 26, 1915, the plaintiff used disrespectful and insulting language to the defendant.” '</p> <p>“ 13. On all the evidence the defendant is entitled to a finding and ruling in his favor.”</p> <p>The judge refused to make any of these rulings or findings. The defendant also asked the judge to make the following ruling:</p> <p>“ 9. Even if the court should find a contract of employment for a definite period of time, if the plaintiff while a servant or employee of the defendant indulged in either disrespectful or insulting language or both toward the defendant, the defendant was justified in discharging the plaintiff.”</p> <p>The judge refused to make this ruling as to disrespectful language but made the ruling as requested as to insulting language.</p> <p>The judge made the findings that are described in the opinion and found for the plaintiff in the sum of $508.35. The defendant alleged exceptions.</p>

<p>Negligence, Street railway.</p> <p>A motorman operating a street railway car in a city street, not going at an excessive rate of speed and sounding the gong, cannot be found to have been negligent in running down'a traveller on foot who stepped from a place of safety directly in front of the moving car, if the motorman had no reason to suppose that the foot traveller was unaware of the approaching car and, as soon as it was evident that the traveller was in a place of danger, did all that'could be done to check the speed of the car.</p>

<p>Negligence, In use of electricity. Wires. Electricity. Evidence, Declarations of deceased persons, Opinion: experts. Practice, Civil, Exceptions, Judge’s charge.</p> <p>A boy about twelve years of age was found lying on his face on the ground “with his arms all spread out and his legs” close to the gutter of a street near a pole of an electric light company supporting an electric light. His body was binned badly by electricity. His clothing looked as if he had been rolled in the dirt and “around the pole was just as clean as you would take a broom and sweep it.” A flash of light had been'seen at that place. A wire was hanging from the pole, the end of it being at least three feet and eight inches from the ground. A witness testified that this wire “was curled up on the end” and that about "four or five inches of this wire was all burned up like a crust of bread.” The boy died the next day without conscious suffering. The accident occurred after the enactment of St. 1914, c. 553. In an action against the electric light company for causing the boy’s death, it was held that there was evidence for the jury of negligence on the part of the defendant.</p> <p>In the case above described the jury found for the defendant on a count for conscious suffering. Subject to the defendant’s exception certain alleged declarations of the boy were admitted in evidence under R. L. c. 175, § 66. Held, that these declarations had been made immaterial upon the count for conscious suffering by the verdict on that count; and it was said that the declarations could pot be considered as evidence in support of the count for causing death, because, if the boy after such injuries had been sustained did not suffer consciously before his death on the day after the accident, he could not be found to have made intelligent declarations, and accordingly that the alleged declarations had not been considered as evidence by this court.</p> <p>In the case above described it was assumed, in the absence of any exception to any part of the judge’s charge, that the judge properly had instructed the jury to disregard the alleged declarations if the boy did not suffer consciously.</p> <p>Upon an exception in the case above described to the admission'of the testimony of an expert on electricity and its effect upon the human body, on the ground that the witness was not qualified properly as an expert, where the evidence as to the qualification of the witness was rather meagre but such evidence was not wholly absent and tire excepting counsel had declined to cross-examine the witness upon that subject, it was held that there was nothing to show that the presiding judge had not exercised his discretion properly in passing upon the witness’s qualification as an expert.</p>

<p>Aqueduct. Water Bights. Equity Jurisdiction, To enjoin interference with private aqueduct. Equity Pleading and Practice, Mandatory injunction.</p> <p>The owner of an easement to draw water from a spring on the land of another by means of a private aqueduct pipe leading from the spring through the land of a third person to a supply tank or distributor on his own land may maintain a bill in equity to enjoin a defendant from cutting the aqueduct pipe on the land of the third person and diverting the water from the spring to the defendant’s land; and in such a suit it is not necessary to allege or to prove that the plaintiff was in actual possession of the land to which such easement was appurtenant when such cutting and diverting were committed; nor is it necessary to allege or prove that the plaintiff suffered actual damage by the wrongful acts of the defendant, legal damage being presumed from the infringement of the plaintiff’s right.</p> <p>In the suit above described it appeared that the aqueduct right was created by an instrument signed by three persons, “each one to have an equal share of the water as the nature of the thing will admití,” and that the instrument ctintained a restriction prohibiting a disposal of the water to any other person “but by the consent of all three of said proprietors.” A master who heard the case found, on evidence warranting such a finding, that the restriction upon the sale of the water was waived by mutual consent. Held, that, in the absence of a report of all the evidence, this finding must stand.</p> <p>In the case above described the final decree ordered the defendant who had cut the aqueduct pipe to replace the pipe and restore it to the condition it was in at the time of the trespass and enjoined perpetually that and another defendant from interfering with the plaintiff's rights in the water. Held, that, on the facts found by the master, the plaintiff was entitled to a mandatory injunction and that the final decree was proper.</p>

<p>Religious Society. Bromfield Street Methodist Episcopal Church in Boston. Trust, Construction, Appointment and removal of trustees.</p> <p>Under a deed of land to trustees to hold it forever in trust and to erect thereon a house of worship “for the use of the members of the Methodist Episcopal Church in the United States of America according to the rules and Discipline which from time to time may be agreed upon and adopted,” it was held that the beneficiary of the trust was the local religious society which, was formed in connection with the church edifice that was built by the trustees from the trust fund on land purchased for the purpose from that fund and which occupied that edifice as their place of worship from the time of its erection until its sale under legislative authority.</p> <p>The religious society referred to above was called the Methodist Religious Society in Boston and comprised what formerly were two societies, merged into one and bearing the name of the original society by order of the bishop of the Methodist Episcopal Church in accordance with the discipline of that church, and it was held that the property rights of the Methodist Religious Society in Boston, as it was before the merger, vested in the consolidated society bearing the same name, for whose benefit it was the duty of the trustees to hold and administer the fund derived from the lawful sale of the church land and building, conforming to the rules and discipline of the church from time to time agreed upon and adopted.</p> <p>The trust deed referred to above contained the provision that, when one or more of the original trustees “ die or cease to be a member or members of said Church,” the minister having charge of the “ members of the said church ” shall call a meeting for filling the vacancy and that a person eligible to election must have been a “member ... of said Church” for one year immediately preceding. At a previous time the Supreme Judicial Court under its general chancery powers, in a suit in equity invoking its aid, had appointed a board of trustees because at that time there were no trustees chosen in accordance with the terms of the trust deed. Held, that this appointment of trustees by the court did not abrogate the provisions of the trust deed providing in express terms for the perpetuation of the board of trustees and did not impose forever on the court the duty of selecting and appointing trustees; and that, a board of trustees having been constituted by the court, vacancies in that board must be filled according to the terms of the trust deed, which had become operative for that purpose.</p> <p>In the interpretation of a deed a significant word used according to the common and approved usage of the language, which is repeated in the same clause of the instrument, is to be understood to have been used the second time in the same rather than in a different sense.</p> <p>In the case described above it was held that the requirement in the trust deed that a trustee must be and continue to be a member “of said Church” meant a member of the local religious society.</p> <p>In the same case it appeared that by the practice of the Methodist Religious Society in Boston, as followed for many years, whenever one of the trustees ceased to be affiliated with that society, his position as trustee was treated as vacated. It appeared that two trustees, who at the time of their appointment by the court were members of the Methodist Religious Society in Boston, afterwards transferred their membership from that society to other local societies. Held, that, by force and effect of the trust deed, these two trustees by their change of membership had vacated their offices as trustees.</p> <p>In the same case it appeared that two of the trustees appointed by the court were not members of the Methodist Religious Society in Boston, although members of the Methodist Episcopal Church, and had not joined afterwards the local society. There was nothing in the bill directed to their removal and no prayer for their removal. Held, that the removal of these trustees was not required.</p> <p>In the same case it appeared that there was another trustee appointed by the court, who was not a member of the Methodist Episcopal Church but belonged to another denomination. At the hearing on the petition for the appointment of trustees it had been represented to the court by all parties in interest that his appointment was desired. He was the organist of the society and was one of its board of trustees. No deceit was practised on the court in regard to his appointment. It was alleged in the petition that all the persons whose appointment as trustees was requested were “members of the Methodist Episcopal Church.” The fact that he was not a member was overlooked at the time, but it was known to all the other trustees and to the counsel who presented the petition and no party in interest was under any misapprehension on the subject. Held, that the removal of this trustee was not required.</p> <p>In the same case, in regard to still another of the trustees, it appeared that he had presented to his co-trustees a bill for $809 and interest for reimbursement for an alleged expense which he had incurred in the course of his duty as a trustee, that $809 was the full amount of a claim for rent against the trustees but that this trustee had settled the claim for $277 and had taken an assignment of the claim to its full amount, and that when he presented his bill for reimbursement to the trustees he did not tell them that he had paid only $277 for the assignment. A master found that this trustee “must have known or should have known that it was improper for a person to personally profit from a fund of which he was one of the trustees.” When the draft of the master’s report had been completed this trustee paid back to the trustees the money thus paid to him'under the assignment. Held, that the conclusion of the master could not be'disturbed, and that the repayment by the trustee when the master’s report was filed did not do away with the effect of his previous acts, and that this trustee must be removed.</p>

<p>Negligence, Street railway. Practice, Civil, Exceptions, Requests and rulings, Judge’s charge, New trial.</p> <p>In an action by an administrator against a street railway company for causing the death of the plaintiff’s intestate by striking him with the front comer of a street railway car of the defendant, when the intestate on foot had tinned to cross the track in front of the moving car, the presiding judge instructed the jury, “that the car and the man had equal rights upon the street; neither had any right to the exclusion of the other.” The jury found for the defendant and, on exceptions alleged by the plaintiff, it was held that the instruction quoted was correct and was sufficient on the subject.</p> <p>In the case above described there was evidence of the defendant that the intestate walked along in the street by the side of the defendant’s track and then turned to the left and stepped on the track in front of the,moving car, and it was held that the presiding judge properly refused to give an instruction requested by the plaintiff which was based on the assumption that the intestate was run into from, behind f>y the defendant’s car.</p> <p>In the same case, where the judge sufficiently and accurately had stated to the jury the relative rights of a pedestrian on a highway and of a street railway company operating a car upon its tracks on the highway, it was held that this subject was covered sufficiently by the judge’s charge and that it was the duty of the jury to consider the particular circumstances of the case as shown by the evidence to have existed at the time of the accident, as they correctly were told to do by the judge.</p> <p>It is the duty of a presiding judge to state in his charge to the jury the principles of law applicable to the issues on trial, and it is within his province under R. L. c. 173, § 80, to state the testimony in his instructions fairly and impartially and to submit to the jury all questions of fact material to the issues in dispute without prejudice and without any attempt to influence their verdict. In the case above described it was held that the judge clearly and accurately and with apt illustrations pointed out to the jury the duty which the defendant’s motorman, in the operation arid management of the car, owed to the plaintiff’s intestate.</p> <p>Upon exceptions to certain portions of the charge of a presiding judge, where the counsel for the excepting party did not call the judge’s attention at the trial to any particular insufficiency or inaccuracy in his instructions to the jury and no complaint was made that further or different instructions were not given, in order that the exceptions may be sustained it is necessary for the excepting party to show that some injustice has been done.</p> <p>Upon an exception to an order of a judge denying a motion for a new trial, the excepting party cannot raise for the first time an objection to the sufficiency of an instruction of the judge to the jury on a certain point in regard to which he had raised no question at the trial.</p>

<p>Tort by copartners engaged in the building business in Turners Falls against the members of an association known as the Bricklayers’ and Plasterers’ Union No. 36 for damages resulting from a conspiracy against the plaintiffs and malicious injury to the plaintiffs’ business. Writ dated August 19, 1915.</p> <p>In the report of this case at a previous stage contained in 225 Mass. 107,' it is stated that, after the sustaining by Callahan, 'J., of a demurrer of the defendants, the plaintiffs amended their declaration by inserting certain words in the first and second counts “and adding a third count which was not demurred to.” The last part of this statement, which is enclosed in quotation marks, is erroneous. It should have been as follows: A motion to add a third count was denied.</p> <p>The defendants demurred to the first and second counts as amended and the demurrer was sustained by Callahan, J., and, on appeal to this court, by the decision reported in 225 Mass. 107, the demurrer to the first count was overruled and the demurrer to the second count was sustained.</p> <p>Thereafter the case was tried on the first count before Jenney, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendants made a motion that a verdict be ordered for the defendants. The judge denied the motion. Thereupon the defendants, among other requests, asked the judge to make the following .ruling: “On the evidence, at the most, only nominal damages can be awarded against any defendant.” The judge refused to make this ruling and submitted the case to the jury, who returned a verdict for the plaintiffs in the sum of $4,000; and the defendants alleged exceptions. The exceptions alleged included exceptions to* certain portions of the judge’s charge, but these exceptions, as stated in the opinion, were not argued by the defendants. There were also exceptions to the admission of certain evidence, which are summarized briefly in the opinion. The material exceptions were to the denial by the judge of the motion to order a verdict for the defendants and to his refusal to make the ruling requested.</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 Mary A. Mallory, as the dependent widow of Edward G. Mallory, late of Worcester, an employee of the J. W. Bishop Company, a corporation conducting the business of a contractor and builder in Worcester, who received on April 17 or 18, 1917, the injury to his great toe described in the opinion, which was alleged to have caused his death from septicemia on April 21, 1917.</p> <p>The case was heard by Aiken, C. J. The evidence reported by the Industrial Accident Board is described in the opinion. The report stated that the insurer asked the board to make the following rulings:</p> <p>“1. There is no evidence from which the board can "find that there was any injury suffered by the deceased in the course of the deceased’s work for the J. W. Bishop Company.</p> <p>“2. There is no evidence from which the board can find that there was any injury suffered by the deceased arising out of the work for the J. W. Bishop Company.</p> <p>“3. On all the evidence the finding of the board must be that no payments are due the alleged dependent.” z</p> <p>The board refused to make any of these rulings.</p> <p>The Chief Justice made a decree, in accordance with the decision of the Industrial Accident Board, “that the deceased employee, Edward G. Mallory, received a personal injury which arose out of and in the course of his employment, on April 17, 1917, that as a result of conditions due to the said injury of April 17, the employee died on April 21,1917; that the claimant, Mary A. Mallory, widow of the employee, lived with him at the time of his injury and death and that the said Mary A. Mallory is entitled to the weekly compensation of $10 from the insurer for a period of four hundred weeks from-April 17, 1917.” The insurer appealed.</p>

<p>Two bills m equity, filed in the Superior Court on November 16, 1912, by the owner of two parcels of land in Williamstown against different defendants, to redeem such parcels from certain tax sales mentioned in the opinion, and amended, against the defendants’ objections, on December 1, 1915, and September 20, 1915, by substituting bills to remove clouds from the plaintiff’s title by setting aside the tax sales, with prayers for alternative relief as on bills to redeem, if the court should determine that the tax sales were valid.</p> <p>The two cases were referred to a master and were heard by him together. The master filed a report, which contained the findings that are stated in the opinion. The defendants filed exceptions to the master’s report, raising the questions which are discussed in the opinion. The exceptions and also a motion of the defendants to recommit the report to the master were argued before Lawton, J., who made an interlocutory decree denying the motion to recommit, overruling the exceptions and ordering that the master’s report be confirmed. Later by order of the judge a final decree was entered in each case declaring the tax sales to be void and ordering the defendants to execute quitclaim deeds to the plaintiff of the respective parcels of land with costs to the plaintiff. The defendants appealed.</p>

<p>Tax, Redemption from tax sale. Watercourse. Equity Jurisdiction, To enjoin interference with water rights, Damages. Damages, In equity.</p> <p>One who has an interest in land as a tenant for life in expectancy is entitled to redeem the land from a tax sale.</p> <p>In a suit in equity by the owner of land through which flowed a natural brook, against a mill corporation, seeking to enjoin the defendant from diverting the waters of the brook for its own use and also for damages, it was found by a master that the plaintiff had suffered no actual damages, the defendant’s use of the water having left water enough for the plaintiff’s needs, and it was held that the plaintiff as a riparian owner on a non-navigable stream had only a right to the reasonable use of the water in common with other riparian proprietors and that, whether the defendant so had diverted the flow of the brook as to injure the plaintiff in the exercise of his right, was a question of fact, on which the negative finding of the master was final, so that the plaintiff, although entitled to an injunction' and to nominal damages, was not entitled to recover from the defendant more than nominal damages for the invasion of the plaintiff’s right by the unauthorized diversion of the water.</p>

<p>Corporation, Taxation. Tax, On income.</p> <p>Under St. 1918, c. 255, § 1, which provides that, “Every corporation incorporated under the laws of this Commonwealth and doing business for profit shall pay a tax to the Commonwealth computed upon the net income for its fiscal or calendar year next preceding, as hereinafter provided, upon which income such corporation is required to pay a tax to the United States,” a corporation, which has paid to the United States a war excess profits tax for the year in question, in cpmputing its net income for such taxation by this Commonwealth is to deduct the amount of such war excess profits tax paid by it, because under U. S. St. 1917, c. 63, § 29, the amount of such war excess profits tax is deducted from the net income of the corporation on which it is required to pay a tax to the United States.</p>

<p>Contract and tort as described in the opinion. Writ dated September 27, 1915.</p> <p>The proceedings in the case are described in the opinion.</p>

<p>Four actions of tort, the first two for personal injuries sustained by the plaintiffs in those actions, who were minors, on the evening of March 20, 1917, on Main Street in the town of Reading by being run into by a motor car alleged to have been driven negligently by the defendant, and the last two actions by the respective fathers of the minors for expenses incurred by reason of their injuries. Writs dated July 20, 1917.</p> <p>The defendant in his answer in each of the two cases for personal injuries alleged that the plaintiff was not in the exercise of due care and was guilty of negligence which contributed to her injury. In each of the two cases for expenses incurred by reason of the injuries the defendant alleged in his answer that the plaintiff’s minor daughter alleged in the declaration to have been injured was not in the exercise of due care and was guilty of negligence which contributed to such injuries.</p> <p>In the Superior Court the cases were tried together before J. F. Brown, J. At the close of the plaintiffs’ evidence, which is described in the opinion,, the judge ruled that St. 1914, c. 553, did not require him to submit the cases to the jury, and he thereupon ordered a verdict for the defendant in each of the "cases. The plaintiffs alleged exceptions.</p> <p>Sections 14 and 16 of St. 1909, c. 534, “An Act relative to motor vehicles and to the operation thereof,” contain the following provisions:</p> <p>“Section 14. . . . Upon approaching a pedestrian who is upon the travelled part of any way and not upon a sidewalk . . . every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device .' . .”</p> <p>“Section 16. Every person operating a motor vehicle on any way in this Commonwealth shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public. . .</p>

<p>Tout for personal injuries sustained on December 28, 1914, by reason of a fall alleged to have been caused by slipping on a defective and dangerous step leading to a door of the defendant’s house in Concord which the plaintiff was invited by the defendant to enter, when the plaintiff had come at the defendant’s request to do some dressmaking for the defendant. Writ dated October 15,1915.</p> <p>In the Superior Court the case was tried before Hitchcock, J. At the close of the plaintiff’s evidence, consisting merely of her. own testimony, which is described in the opinion, the judge, on motion of the defendant, ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Report.</p> <p>By R. L. c. 173, § 108, as amended by St. 1912, c. 317, the power of a judge of the • Superior Court, after the death of another judge of that court who had presided at a trial, to report the case thus tried for determination by this court, is confined expressly to cases where the trial judge had reserved the case for report and failed by reason of his death to make such report; and, in a case where there was no request to the trial judge to report the case and no decision by him to make a report, another judge has no power to report the case after his death.</p>

<p>Practice, Civil, Findings of judge.</p> <p>Where a case is tried before a judge without a juryj a finding of fact by the judge warranted by the evidence is final.</p>

<p>Practice, Civil, Verdict. Evidence, Presumptions ar.d burden of proof. Negligence. Motor Vehicle. !</p> <p>Mere disbelief of testimony is not the equivalent of evidence to the contrary.</p> <p>In an action for personal injuries sustained by being struck by a motor car of the defendant, proof that the defendant owned the car, without any evidence that . he was in control of it or that the person driving it was his servant, does not entitle the plaintiff to go to the jury.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on September 4, 1918, by the mayor and more than ten taxable inhabitants of the city of Taunton under R. L. c. 25, § 100, to restrain the city auditor from approving and the city treasurer from paying to employees of the fire department and of the police department an increased compensation which purported to be authorized by certain orders and ordinances of that city passed by the city council without the approval of the mayor and alleged to be void.</p> <p>The case was heard by Carroll, J. The facts that appeared in evidence are stated in the opinion. The single justice ruled that the order of the city council purporting to make an appropriation for payment of extra compensation to members of the police and fire departments, which was passed on July 16, 1918, as described in the bill, was unlawful and void.</p> <p>He found that,' although the other appropriations which had been made lawfully for the police and fire departments of the city of Taunton had not been entirely spent at the dates when the city council passed the order and ordinances described in the bill, by which they attempted to increase the compensation of policemen and permanent firemen, such appropriations were sufficient only for the payment of the wages of such employees at the rates which were in force before such orders and ordinances were passed, and were not sufficient to pay any of the increases therein contained, and he ruled that the city council had no authority to make the increases in compensation of policemen and permanent firemen which they attempted to make by the order passed on May 14, 1918, described in the bill and by the ordinances passed on July 23,1918, also described in the bill.</p> <p>He also found that certain other ordinances described in the bill were unreasonable in so far as they required payment of the moneys of the city of Taunton by the treasurer on warrants not signed by the mayor, and ruled that the amendments to the ordinances of the city of Taunton described in that part of the bill were void.</p> <p>The single justice ordered permanent injunctions to issue as prayed for in the bill, and reported the case for determination by the full court.</p> <p>The provisions relating to an annual budget of current expenses in cities other than Boston governed by a mayor and a city council, contained in § 20 of St. 1913, c. 719, called the municipal indebtedness act, are as follows:</p> <p>“Section 20. Within sixty days after the annual organization of the city government, the mayor of every city, except Boston and those cities having the commission form of government, so called, shall submit to the city cotmcil the annual budget of the current expenses of the city, and the mayor may submit thereafter supplementary budgets until such time as the tax rate for the year shall be fixed. The budget shall consist of an itemized and detailed statement of the money required, and the city council shall make such appropriations in detail, clearly specifying the amount to be expended for each particular purpose. The city council may reduce or reject any item, but, without the approval of the mayor, shall not increase any item in nor the total of a budget, nor add any item thereto. , It shall be the duty of the city officials, when so requested by the mayor, to submit to him forthwith in such detail as he may require estimates for the next fiscal year of the expenditures of their departments or offices under their charge, which estimate shall be transmitted to the city council. In case of the failure of the mayor to transmit in writing to the city council a recommendation for an appropriation of money for any purpose deemed by the council to be necessary, and after having been so requested by vote of the city council, said council, after the expiration of seven days after such vote, upon its own initiative, may make an appropriation for such purpose by a vote of at least two thirds of its members, and shall in all cases make such appropriations in detail, clearly specifying the amount to be expended for each particular purpose; . . . In the period after the expiration of any fiscal year and before the regular appropriations have been made by the city council, liabilities may be incurred and expenditures made payable out of the regular appropriations to an amount not exceeding in any month sums spent for similar purposes during any one month of the preceding year, or may expend in any one month for any officer or board created by law an amount not exceeding one twelfth of the estimated cost for that year, but all interest and debt falling due in said period shall be paid.”</p>

<p>Probate Court, Appeal.</p> <p>An order of a single justice of this court denying a petition for leave to enter late an appeal from a decree of the Probate Court on the grounds that the petition was not filed within the time allowed by R. L. c. 162, § 14, and that, if it had been, the petitioner had not brought himself within the requirements of § 13 cannot be reviewed on appeal in the absence of any report of the evidence.</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 Ellen McCarthy, the dependent widow of Dennis C. McCarthy; late of Boston, who was employed as a helper on a wagon of Rueter and Company, Incorporated, for the death of the employee from tuberculosis on February 2, 1915, alleged to have resulted from an injury received by him on September 14, 1914, which aggravated and accelerated the disease.</p> <p>The case was heard by McLaughlin, J. It appeared by the •report of the Industrial Accident Board that the arbitration committee found, "Upon all the evidence, that the personal injury received by the employee on September 14, 1914, had no causal relation to his death by reason of a condition of acute miliary tuberculosis on February 2, 1915, and therefore dismissed the claim for compensation filed by his widow.” At the hearing before the Industrial Accident Board no new evidence was introduced, the case being considered by the board upon the facts reported by the arbitration committee. The character of that evidence is described in the opinion. The board, having reviewed the evidence as reported to them, affirmed and adopted the findings and decision of the arbitration committee.</p> <p>The judge made a decree in accordance with the decision of the Industrial Accident Board; and the dependent widow appealed.</p> <p>The case was submitted on briefs.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board ordering the insurer to pay to Joseph Dembinski and Anna Dembinski, his wife, as the partially dependent parents of Stanislaw Dembinski, a minor, whose death on April 12, 1917, resulted from an injury arising from and in the course of his employment, “a weekly compensation of $6.60 to be paid in equal shares to Joseph and Anna Dembinski for a period of five hundred weeks from April 12, 1917.”</p> <p>The case was heard by Aiken, C. 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; and the insurer appealed.</p>

<p>Evidence, Dying declarations, Opinion: experts. Abortion.</p> <p>At the trial of an indictment under R. L. c. 212, § 15, for unlawfully attempting by the use of a certain instrument to procure the miscarriage of a certain woman, in consequence of which she died, the dying declarations of the woman, made when she fully realized that she had no hope of recovery, contained in the form of answers to questions in a paper subscribed and sworn to by her before a justice of the peace, who testifies to having taken down the answers as nearly as he could in writing long hand, are admissible in evidence, and the presiding judge properly may allow the contents of the paper to be read to the jury.</p> <p>The statements of the woman contained in such a paper, which describe her purpose in seeking medical advice and assistance from the defendant and her conversations with him, are competent evidence, to which the declarant could have testified as a witness, if living.</p> <p>At the trial of such an indictment the medical examiner who performed the autopsy on the body of the woman, and whose qualification as an expert is unquestioned, properly may be allowed to testify as to what in his opinion was the cause of her death.</p>

<p>Eminent Domain. Parks and Park Commissioners. Equity Jurisdiction, To remove cloud from title.</p> <p>Application of the principle that the taking of property by right of eminent domain is an act strictissimi juris and is valid only when the statutory requirements are performed with exactness.</p> <p>.Under R. L. c. 28, § 2, which provides that no land shall be taken by a board of park commissioners for a public park until an appropriation sufficient for the estimated expense thereof shall have been made in the manner provided in the statute, a taking of land by the park commission of a city before such an appropriation has been made, followed by an appropriation made by the city council in the manner required by the statute, is void and is not made valid by the subsequent action of the city council. Following Lajoie v. Lowell, 214 Mass. 8.</p> <p>An attempted taking of land under the right of eminent domain which is void for lack of jurisdiction affords ground for maintaining a suit in equity by the owner of the land to remove the cloud from his title.</p>

<p>Equity Jurisdiction, To cancel discharge of mortgage made on margin of record by mistake. Mortgage, Of real estate. Attachment.</p> <p>In a suit in equity by a mortgagee of real estate for the cancellation of a discharge of the plaintiff’s unpaid mortgage which had been entered by mistake on the margin of the record in the registry of deeds under R. L. c. 127, § 34, as amended by St. 1908, c. 149, it appeared that two of the defendants were attaching creditors of the mortgagor, who had attached the real estate in actions of contract after the apparent discharge of the mortgage on the record and without knowledge of the mistake, and it was held that the bill must be dismissed as to the defendant attaching creditors, whose liens took precedence of the plaintiff’s mortgage.«</p>

<p>Contract, What constitutes. Equity Jurisdiction, To enforce promise made to another for the plaintiff’s benefit. Agency, Existence of relation.</p> <p>A steel contractor agreed to furnish to a builder the structural steel required for a building to be constructed by the builder for a boiler company. There was nothing in the contract to show that in making it the builder was acting a# the • agent of the boiler company. The steel was furnished under this contract as required for the building, but it was not furnished upon any promise of the boiler company to the steel contractor. In the contract between the builder and the boiler company for the construction of the building there was nothing constituting the builder the agent of the boiler company in making the necessary contracts for labor and materials which the builder agreed to provide at a cost not to exceed, including the builder’s profit on a percentage basis, the entire price for which the builder was to construct and complete the building. The builder became bankrupt, and the steel contractor brought a suit in equity against the boiler company and the trustee in bankruptcy of the builder, seeking to have the boiler company ordered to pay the plaintiff for the structural steel furnished for the building instead of paying the contract price to the trustee in bankruptcy of the builder. The plaintiff contended that the evidence showed that it was the intention of the parties that, upon a statement by the builder of the amount, the boiler company as principal should pay all bills for materials furnished by subcontractors. Held, that, even if the contract between the builder and the boiler company showed such an intention of the parties to that contract, the promise was not made to the steel contractor but to the builder, and that the steel contractor could not maintain a suit in equity to enforce payment to him founded on a promise made for his benefit to another person, from whom alone the consideration moved and who was not his agent.</p>

<p>Contract for $500 paid by the plaintiffs under a contract in writing for the purchase of a motor hearse. Writ in the Municipal Court of the City of Boston dated February 6, 1918.</p> <p>The declaration was in two counts; the first count being for money had and received to the use of the plaintiffs, and the second count alleging that the plaintiffs and the defendant entered into a written contract, a copy of which was annexed to the declaration, for the purchase' of a motor hearse; that the plaintiffs paid the defendant $500 pursuant to the contract, but that the defendant did not deliver the hearse within the time contemplated by the contract; wherefore the plaintiffs repudiated and cancelled the contract and demanded the return of the $500.</p> <p>The answer as amended contained a general denial and an allegation that the delay in delivery was due to a cause unavoidable or beyond the control of the defendant.</p> <p>The contract, of which a copy was annexed to the declaration, was as follows:</p> <p>"James Cunningham, Son & Co.</p> <p>“May 3rd, 1917</p> <p>“Please Ship to James A. Martin & Son as near the First day of August, 1917, as practicable, the following described Staight Motor Hearse for which we agree to pay the sum of $4250 dollars and the freight thereon from Rochester, N. Y., as follows:</p> <p>“A payment of Two Hundred & Fifty dollars accompanies this order, which is to be returned only if the order is not accepted. Two Hundred & Fifty Dollars in 30 Days. $500.00 dollars to be paid on arrival of said vehicle at Portland, Maine. James A. Martin & Son, and the balance in equal monthly notes of $150 dollars each, payable at the Portland National Bank, with 6 per cent interest from date of arrival.</p> <p>“We also agree to give as security for said notes a mortgage or trust deed on said vehicle, in the standard form used by you, for the sum of $3250 dollars and we also agree to keep the said vehicle insured against loss by fire, theft and collision and pay the premiums thereon until the last payment becomes due, said policy of insurance to be issued in our name; with loss, if any, payable to James Cunningham, Son & Co., as its interest may appear.</p> <p>“Standard Warranty.</p> <p>“We warrant the motor vehicles sold by us for ninety days after the date of delivery, this warrant being limited to the furnishing at our factory of such parts' of the motor vehicle as shall, under normal use and service, appear to us to have been defective in material or workmanship.</p> <p>“This warranty is limited to the shipment to the purchaser, without charge except for transportation, of the part or parts intended to replace the part or parts claimed to have been defective and which, upon their return to the factory for inspection, all transportation charges prepaid, we shall have determined were defective.</p> <p>“No warranty whatever in respect to tires, rims, radiators, coils or batteries is made.</p> <p>" “The condition of this warranty is such that if the motor vehicle to which it applies is altered, or repaired, without written authority from the factory or its branches, manufacturer’s liability under this warranty shall cease.</p> <p>“The purchaser understands and agrees that no warranty of the motor vehicle is made, or authorized to be made, by the Company, other than that hereinabove set forth.</p> <p>“We hereby agree to purchase said vehicle on the terms and conditions above stated, and it is expressly agreed and understood in case this order is accepted, that the above contains the entire agreement in regard to and with reference to the sale and purchase of said vehicle.</p> <p>“Strikes and other delays unavoidable, or beyond your control will relieve you from prompt fulfillment of this order. All verbal agreements are contained in this order and purchaser acknowledges • receipt of the copy of this order.”</p> <p>Here followed specifications for the hearse and the signatures of the parties.</p> <p>At the trial in the Municipal Court the following facts appeared:</p> <p>' The first payment of $250 accompanied the order as required by the contract, and the second payment of $250 was made by the plaintiffs in proper course. The order was accepted by the defendant, and work was begun under it, but the motor hearse was not shipped to the plaintiffs on August 1, and had not been shipped to them by October 2,1917. On that date the plaintiffs wrote to the defendant cancelling the order. Considerable correspondence between the parties followed, and on October 17, 1917, an attorney wrote to the defendant on behalf of the plaintiffs, demanding the return of the $500 paid by them under the contract.</p> <p>The defendant introduced evidence that the motor hearse was finally completed the latter part of October, 1917, but the first intimation that it was ready for shipment was received by the plaintiffs in a letter from the defendant dated November 17,1917. The motor hearse finally was sold by the defendant after notice to the plaintiffs at a price $250 less than the contract price:</p> <p>Under the clause in the contract providing that “strikes and other delays unavoidable or beyond your control will relieve you from the prompt fulfillment of this order,” the defendant introduced evidence tending to show that the delay was caused, in the first place, because the motor required a particular kind of transmission, which was only made by a certain gear company, an independent contractor, that this company did not deliver transmissions as agreed, but was several months behind in its deliveries; that the particular type of transmission could not be obtained elsewhere, and that a different kind of make could not be used without altering the engine and rebuilding the entire hood of the car, entirely changing its appearance and causing more delay; and, in the second place, because of illness in the family of the body builder working upon this order which kept him from work about four weeks, and because it was impossible to hire a competent substitute in his place.</p> <p>At the close of the evidence, the defendant asked the judge to make the following rulings of law:</p> <p>“1. On all the evidence, the plaintiffs are not entitled to recover.</p> <p>' “2. If the delay in delivery of the motor hearse was due to a cause unavoidable or beyond the control of the defendant, the plaintiffs are not entitled to recover.</p> <p>“3. By the terms of the contract, the defendant fully performed, if it was ready to deliver the hearse as soon as practicable after August 1 as the delays unavoidable or beyond its control would permit.</p> <p>“4. The plaintiffs in any event are not entitled to recover the first payment of $250, which by the terms of the contract was to be returned only if the order was not accepted, the order having been accepted and the hearse having been built.”</p> <p>Upon these rulings, the judge made the following memorandum: “ 1st and 4th refused, 2d and 3d allowed as academic questions, but I do not find facts premised in the requests.”</p> <p>Thereupon the judge found for the plaintiffs in the sum of $500 with interest from October 17, 1917, and, at' the request of the defendant, reported the case to the Appellate Division.</p> <p>The Appellate Division ordered the clerk to make the following entry: “Finding for the plaintiffs for $250 and interest thereon from October 17, 1917.” The plaintiffs appealed.</p>

<p>Contract to recover $42.50, as the price of five tons of coal at $8.50 a ton sold and delivered by the plaintiff to the defendant, with interest thereon. Writ in the Second District Court of Southern Worcester dated May 31, 1916.</p> <p>The answer contained a general denial and further alleged that if the plaintiff delivered the coal it was not delivered to be charged to the defendant but was delivered on account to be charged to another party. There was no allegation of payment.</p> <p>On appeal to the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. At the close of the evidence the plaintiff asked the judge to give to the jury the following instructions:</p> <p>“1. There is no evidence on which the jury can find that Clarence Sawyer was authorized as the plaintiff’s agent to purchase any motor cycle with title to be conferred upon said Sawyer at the time of the purchase.</p> <p>“2. If the jury find on the evidence that at some time after-the delivery of the coal concerned the defendant learned that said coal was the property of the plaintiff, and the defendant did not return said coal to the plaintiff, but continued using it, or the remainder thereof, the plaintiff is entitled to recover.</p> <p>“3. If the jury find on the evidence that coal owned by the" plaintiff was actually delivered by the plaintiff or some person authorized in his behalf to the defendant or some person duly authorized by him to receive the same, and that at some time ■thereafter the plaintiff informed the defendant that the said coal was owned by the plaintiff, the plaintiff is entitled to recover, provided it appears that the defendant did not return said coal to the plaintiff, but continued using the same.</p> <p>“4. If the jury find that the circumstances under which the defendant entered into the contract with Clarence Sawyer, as claimed by the defendant, were such as should have put a reasonable man on his guard, and caused him to suspect that said coal was not owned by Sawyer, but by the plaintiff, and it appears that said coal actually was owned by the plaintiff, and that the use and benefit thereof was derived by the defendant, the plaintiff is entitled to recover.”</p> <p>The judge refused to give any of these instructions to the jury and as a part of his charge gave the following instruction, to which the plaintiff excepted:</p> <p>The question is “whether those five tons were delivered to the defendant as. the property of Farnum, or when delivered to Ramsey through other persons reached Ramsey as the property of Sawyer and in payment for Sawyer for that debt and that was authorized by Farnum or whether Farnum directly or indirectly authorized Sawyer to deliver this coal before the coal was delivered as Sawyer’s coal and in payment of Sawyer’s debts. If so, of course it is paid in payment of Sawyer’s debt. On the other hand if that coal went to Ramsey without any authority of Farnum and treated as his own and not to apply on Sawyer’s debt and it was Farnum’s coal and was always Farnum’s coal and reached Ramsey as Farnum’s coal, not having been paid for is the plaintiff’s case.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Contract by the collector of taxes of the town of West Bridge-water against the executors of the will of Horace W. Howard, late of that town, who died on January 14, 1913, for taxes alleged to be due for the years 1913,1914 and 1915. Writ dated October 11, 1916.</p> <p>In the Superior Court the case-was submitted upon an agreed statement of facts'and a supplemental statement of agreed facts to J'enney, J., who found for the plaintiff and ordered that judgment be entered in his favor in the sum of $6,714.68.' At the request of the parties the judge reported the case upon the pleadings, the agreed statements of fact and the order of judgment for determination by this court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on June 26, 1918, by the four children, three sons and one daughter, of Thomas L. Livermore, late of Boston, each as a separate trustee under the will of Thomas L. Livermore, who died on January 9, 1918, against themselves individually and against the children of each of them, praying for instructions upon the following points:</p> <p>“1. Is the title of the plaintiffs as trustees in said real estate a title in fee simple or a life estate?</p> <p>“2. What is the legal title of the plaintiffs as trustees in said real estate?</p> <p>“3. Have any of the defendants other than the plaintiffs any legal title in said real estate?</p> <p>“4. Have the plaintiffs as trustees the right and power under .'the circumstances and for the purposes set out in this bill, and under the terms of said will, to sell said real estate and give title to the same to the purchaser in fee simple, without obtaining leave from the Probate Court so to do? ”</p> <p>The plaintiff Robert Livermore, trustee, also prayed for separate instructions on the following points:</p> <p>“1. Is the estate of said Robert in said after acquired real, estate a fee simple or a life estate?</p> <p>“2. What is the legal title of said Robert as trustee in said after acquired real estate?</p> <p>“3. Have any of the three defendants mentioned in the fifth paragraph of this bill [the three children of Robert] any legal title in said after acquired real estate?</p> <p>“4. Has said Robert as trustee the right and power under the circumstances and for the purposes set out in the1 fifth paragraph of this bill, and under the terms of the residuary clause of said will, to sell and convey said after acquired real estate, and to give title to the same in fee simple, without obtaining leave of the Probate Court so to do? ”</p> <p>The case came on to be heard before Loring, J., who reserved it for determination,by the full court.</p> <p>The case was submitted on briefs.</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 dismissing the claim to compensation of Bertha H. Weatherbee, the dependent widow of Amos Weather-bee, who died on August 5, 1916, when he was employed as a laborer by the town of North Attleborough, which had accepted the provisions of St. 1913, c. 807.

<p>Negligence, Street railway. Carrier, Of passengers.</p> <p>Where the conductor of a street railway car with the seats running lengthwise is passing through the car taking fares and, when he is in the act of pulling the overhead strap to ring in a fare or to give the signal to start the car, a passenger Who is behind the conductor begins to rise from his seat in order to make ready to get out at the next stopping place, and the conductor’s elbow as his arm descends in pulling the strap comes in contact with the rising passenger and knocks off his eyeglasses, which break and injure one of his eyes, this is a pure accident, and these facts are no evidence of negligence toward the passenger on the part of the conductor.</p> <p>It is not reasonably practicable to require the conductor of a street railway car before performing his ordinary duties to look on all sides to ascertain whether some change of position by a passenger, not ordinarily to be expected, may result in the collision of some-part of the conductor’s body with such passenger.</p>

<p>Contract upon the instrument in writing which is quoted in full in the opinion. Writ dated October 6, 1916.</p> <p>The defendant’s answer contained, among other things, an allegation “that the cause of action mentioned in the plaintiff’s writ did not accrue within six years before the suing out of the plaintiff’s writ.” An amendment to the answer alleged that the promise contained in the indorsement was an agreement to give a preference to the plaintiff in the event of any future proceedings in bankruptcy and was void as against public policy and in violation of the bankruptcy act of 1898 and amendments thereto.</p> <p>The case was tried before N. P. Brown, J., without a jury. At the close of the plaintiff’s evidence, the defendant offering no evidence, the plaintiff made a motion asking the judg^ to order a verdict for her for the reason that upon all the evidence the jury would not be warranted in finding any other verdict. The judge denied this motion. The defendant then made a motion asking the judge to order a verdict for him. The judge allowed this motion and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Estoppel. Bailment. Attachment. </p> <p>Merely entrusting the possession of a chattel to a third person and permitting him to use it for many years do -not estop the owner from asserting Ms title to the chattel against one attacMng it as the property of such third person.</p>

Two actions of tort, the first by the owner of a. motor cycle for personal injuries and damage to the motor cycle by reason of “being run into by a motor car owned by the defendant and carelessly operated on the wrong side of the road by him on Sunday, July 2, 1916, at about half past nine o’clock in the morning on Winthrop Street, a public highway in Taunton, at or near the corner of Fairview Avenue, and the second action by the wife of the plaintiff in the first action,…

<p>Negligence, Contributory, Motor vehicle. Evidence, Presumptions and burden of proof.</p> <p>A boy sixteen years of age was standing in the street with another boy watching a concrete mixing machine which was being operated. There was a single street railway track in the middle of the street. The mixing machine stood between one of the rails of this track and the curbstone of the sidewalk. The machine had a hopper, which when lowered swung outward about two feet beyond the machine toward the centre of the street. The boy was standing on the street railway track about half way between the rails, facing the machine and a little less than three feet from it, when the hopper was lowered and he stepped back a single step to avoid being struck by it and was struck and killed by a motor car being driven negligently at the rate of about thirty miles an hour and appreaching without warning. There was ample space in the highway for the motor car to have passed behind the boy without striking him. In an action against the owner and operator of the car for causing the boy’s death, it was held, that on the facts stated above, which could have been found upon the evidence, it could not-be ruled as matter of law that the plaintiff’s intestate was negligent.</p> <p>In the case above described there was no evidence that the intestate looked behind him before stepping back, and it was said that, if he did not, his failure to do so would not necessarily be negligence.</p> <p>In the same case it was said that it was not necessary to consider, whether, if the accident had happened before the enactment of St. 1914, c. 553, there would have been evidence to warrant a finding that the intestate was actively in the exercise of due care.</p>

<p>Workmen’s Compensation Act. Longshoreman. Agency. Negligence, In unloading vessel, Of fellow servant. Practice, Civil, Exceptions, Requests and rulings.</p> <p>By St. 1913, c. 568, unchanged by St. 1914, c. 708, § 13, amending § 2 of Part V of the workmen’s compensation act by excepting from the operation of that act “masters of and seamen on vessels engaged in interstate or foreign commerce,” a longshoreman employed to shovel coal in discharging the cargo of a schooner engaged in interstate commerce is not included in the exception made by the act itself.</p> <p>A longshoreman who is injured in the course of his employment in unloading the cargo of a vessel engaged in interstate commerce while she is lying in navigable waters has received a maritime injury in maritime work and, under the decision of the Supreme Court of the United States in Southern Pacific Co. v. Jensen, 244 U. S. 205, the provisions of the workmen’s compensation act do not apply to him, the effect of such injuries being within the exclusive admiralty and maritime jurisdiction of the United States under art. 3, § 2, of the Constitution of the United States and the Judicial Code U. S. St. 1911, c. 231, 36 U. S. Sts. at Large, 1161, § 256, cl. 3.</p> <p>Consequently, where a longshoreman was injured when in the employ of an independent contractor,. who had agreed with the proprietor of a schooner engaged in carrying coal from State to State to unload a cargo of coal from the hold of the schooner when lying in navigable waters, and where such proprietor of the schooner was a subscriber under the workmen’s compensation act, in an action by the longshoreman against the proprietor of the schooner for his injuries the defendant cannot set up in defence, that the plaintiff has waived his right of action at common law by having failed to give notice under St. 1911, c. 751, Part I, § 5, that he claimed his right of action at common law, because the workmen’s. compensation act has no application to an action for such a maritime injury and the action must be governed wholly by the common law.</p> <p>Discussion by Rugg, C. J., of the character of the workmen’s compensation act contained in St. 1911, c. 751, and amendments thereto.</p> <p>In such an action at common law brought by a longshoreman injured in the manner above described there was evidence of his due care in addition to the presumption created by St. 1914, c. 553, and it was held that the question, whether the defendant had shown that negligence of the plaintiff contributed to his injury, was for the jury.</p> <p>In such an action the defendant is responsible for the negligence of his own servants, who were not the fellow servants of the plaintiff because the plaintiff was in the employ of the independent contractor and not of the defendant.</p> <p>In the same action it was said that the defendant would not have been liable for the negligence of the fellow servants of the plaintiff who were employed by the independent contractor, but there was no evidence of any negligence of such servants contributing to the plaintiff’s injury.</p> <p>A request for an instruction to the jury stating a sound principle of law which is not applicable to the evidence is refused properly.</p> <p>In the same action it was held that there was no error in refusing to make rulings to the effect that the defendant was not responsible, if the rope whose parting caused a tub of coal to fall on the plaintiff was purchased from a reputable dealer and gave way because of a hidden flaw after being used a few times, because it appeared by the defendant’s own testimony that he had owned the rope for about six months and had used it for unloading a cargo of coal before the cargo for which it was being used at the time of the accident, and the instructions given by the judge upon this point could not, be said to have been insufficient under all the circumstances.</p>

<p>Municipal Corporations, Municipal indebtedness act. Cambridge. Mandamus.</p> <p>The mayor, the superintendent of streets and the auditor of a city that has adopted the Plan B form of government provided for in St. 1915, c. 267, Part III, subject to St. 1913, c. 719, called the hmnicipal indebtedness act, are right in refusing . to approve the alleged wages of certain city laborers claimed by them under an ordinance attempted to be passed by the city council raising the rate of the wages of the classes of laborers in question beyond the amount provided for by the budget for the fiscal year in violation of § 20 of the municipal indebtedness act.</p> <p>vIn a petition by certain laborers in the employ of the city of Cambridge for a writ of mandamus to compel the mayor, the superintendent of streets and the auditor of that city to certify to the city treasurer the wages of the petitioners at an increased rate attempted to be established by an ordinance passed by the city council of that city in violation of the provisions of the municipal indebtedness act contained in St. 1913, c. 719, § 20, it was said that, as the petition must be dismissed, it was not necessary to consider whether; if the petitioners had been entitled to the wages claimed by them, they could have sued for such wages in actions of contract so that they would not have needed, nor have been entitled to, the writ of mandamus sought.</p>

<p>Bill in equity, filed in the Superior Court on May 28, 1918, alleging that the plaintiff was a first lieutenant in the United States Army stationed at the United States Army Hospital at Ellis Island in the city of New York in the State of New York, that on November 22, 1917, the plaintiff was the holder of a mortgage made by one Abraham Cheren upon certain land and the buildings thereon on Hancock Street and on Joy Street in Boston, that the premises were subject to a prior mortgage for $18,000 held by the defendant, the Charlestown Five Cents Savings Bank, that on January 31, 1917, the plaintiff for a breach of condition in the mortgage held by him sold the premises at public auction under the terms of his mortgage, that the plaintiff, having received his appointment to the United States Army, not knowing the exact date of his being called to the army and knowing the uncertainty of life, caused the premises to be conveyed to the plaintiff’s mother, Bessie Hoffman, who at the time of the filing of the bill was the holder of the property for the benefit of the plaintiff, that the interest on the prior mortgage held by the defendant would come due on July 29, 1918, and on information and belief alleging that, while the plaintiff was absent in New York in the service of the United States Army, the defendant, without notice to the plaintiff and when there was , no breach of condition of the mortgage held by- the defendant, took possession of the premises and advertised them to be sold at foreclosure on Monday, May 27, 1918, at three o’clock in the afternoon, at which time and without notice to the plaintiff the premises were sold to some person unknown to the plaintiff, and that the defendant conspired with divers persons unknown to the plaintiff to deprive the plaintiff by fraud of his rights in such real estate. The prayers of the bill were (1) that the defendant be enjoined and restrained from proceeding further with the foreclosure of the mortgage, (2) that the defendant be enjoined and restrained from placing on record in the Suffolk registry of deeds any papers affecting the title to the premises, (3) that the defendant be ordered to vacate its possession of the premises, (4) that the defendant be ordered to account for any and all rents collected by the defendant, and (5) for further relief.</p> <p>The case was referred to a master, who filed a report containing the findings that are stated in the opinion. The plaintiff filed two objections to the master’s report, in regard to the first of which the master at the conclusion of his report made the following statement: "The first objection states that the master rules, ‘As a matter of law that the United States act of Congress approved by the President on March 8,‘ 1918, does not apply to the plaintiff.’ I have made no such ruling. My ruling is that on the facts found the act apparently does not apply, but that the matter as to whether it does or does not apply and as to whether the plaintiff is on the facts, found entitled to any relief is a matter for the court rather than for the master.”</p> <p>The plaintiff filed an exception to the master’s report “ in that the master refuses to rule as a matter of law, that the United States act of Congress, approved by the President on March 8, 1918, does not apply to the plaintiff.”</p> <p>The case was heard by Jenney, J., who made an interlocutory decree overruling the plaintiff’s exception to the master’s report and ordering that the report of the master be confirmed. Later the same judge made a final decree that the bill be dismissed; and the plaintiff appealed.</p> <p>Section 302 of U. S. St. 1918, c. 20, approved March 8, 1918, is as follows:</p> <p>"(1) That the provisions of this section shall apply only to obligations originating prior to the date of approval of this act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of the military service and still so owned by him.</p> <p>“(2) In any proceeding commenced in any court during the period of military service to enforce such obligation arising out of nonpayment of any sum thereunder due or out of any other breach of the terms thereof occurring prior to or during the period of such service, the court may, after hearing, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of his military service —</p> <p>(a) Stay the proceedings as provided in this act; or</p> <p>(b) Make such other disposition of the case as may be equitable to conserve the interests of all parties.</p> <p>“ (3) No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such obligation shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court.”</p>

- Contract to recover a balance alleged to be due on a sale to the defendant, by the plaintiff’s husband and through a third person the plaintiff’s assignor of certain livery stable property and equipment for $4,000, the defendant being credited with payments amounting to $2,288.63, and to recover also compensation for the use of the plaintiff’s property by the defendant. Writ dated November 25, 1914.

<p>Bill in equity, filed in the Superior Court on April 26 and amended on October 20, 1916, seeking to have the defendant Brown, as the trustee under a pooling agreement, ordered to transfer to the plaintiff certain shares of the capital stock of the Nixon-Nevada Mining Company, as more fully described in the opinion.</p> <p>The case was heard by Jenney, J., who made a finding of facts, including the facts that are stated in the opinion, the evidence being reported by a commissioner appointed to take the evidence under Equity Rule 35. The judge made an order that the bill be dismissed. Later by order of the judge a final decree was entered dismissing the bill with costs to the defendants. The plaintiff appealed.</p>

Tort for personal injuries sustained on April 5, 1916, when the plaintiff was crossing on foot Fifth Street in the part of Boston called South Boston, by being run into by a horse and delivery wagon negligently driven by a servant of the defendant. Writ dated April 25, 1916. The defendant’s answer contained an allegation that the plaintiff’s negligence contributed to her injury.

<p>Practice, Civil, Appeal, Memorandum of judge. Joint Tenants and Tenants in Common. Husband and Wife. Widow.</p> <p>On an appeal from a decree made by a judge of the Superior Court establishing a lien under St. 1909, c. 490, Part II, §§ 74, 75, for the amount of the respondent’s proportion of taxes on certain real estate which had been paid by the petitioner as cotenant and ordering a sale of the respondent’s interest in the real estate, a memorandum of decision made by the judge is not a part of the ■ record, and, if printed with the record of the appeal, it must be disregarded by this court.</p> <p>Under R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256, a widow, whose husband died intestate without issue leaving an estate worth less than $5,000, takes upon his death a vested right in his real estate as his statutory heir.</p> <p>The provisions contained in St. 1905, c. 256, in regard to setting out the real estate to the widow in such a case, do not abridge nor qualify the nature of her interest.</p>

<p>Bill in equity, filed in the Superior Court on December 2, 1915, and amended on March 11,1918, by the mortgagee of certain real estate on the Bay State Road in Boston, against the defendants, who as trustees were the successors of the mortgagor, to collect a balance of the mortgage debt remaining due after a foreclosure sale.</p> <p>The case was heard by Fox, J., who found the facts that are stated in the opinion. Upon these facts and the evidence before him he “found that the agreement for extension was executed by both parties and went into effect upon its execution, and ruled that the effect of such extension was to bar the plaintiff’s right of recovery in the present case; and, without considering the other defences relied on by the defendants,” ordered that the bill be dismissed with costs and, at the request of the plaintiff, reported the case for determination by this court, such decree to be entered as justice and equity might require.</p>

<p> Workmen’s Compensation Ad. Proximate Cause. </p> <p>In a claim under the workmen’s compensation act by the dependent of an employee, who was found dead with his throat cut by a dangerous machine on - which he worked and into which he had fallen, the burden of proof is upon the dependent to show that the employee was alive when he fell into the machine.</p> <p>A boy of nineteen was employed as the tender of a beaming machine, which wound • yarn on a revolving beam. He had one very badly diseased lung and the valves of his heart-wére shrunken. Nobody saw him fall into the machine, but his body was found lying on the machine with his throat cut by it. There was blood two or three feet away from the machine “as if it was all one spurt” and there was a little blood on the machine. A few moments before the accident he had talked with his foreman in front of his machine and was apparently all right. These facts were shown in a claim made by his dependent under the workmen’s compensation act. The uncontradicted testimony of the only expert witnesses was to the effect that, as to whether the boy was dead when he struck the machine or whether he was living and the machine caused his death, it was as reasonable to say one thing as another, and that it would be absolutely impossible for any doctor to say definitely whether or not he was dead when he struck the machine. The Industrial Accident Board found that the “evidence showing that there was a spurting of blood as far as three feet from the gash in the throat indicated the strength of the heart as alive and forceful at the time,” and awarded compensation to the dependent. On an appeal from a decree of the Superior Court in accordance with this decision, it was held that this court could not say as matter of law that the conclusion of the board was unsupported by the evidence.</p> <p>In the same case it was contended by the insurer that, assuming that the employee was alive when he struck the machine, the cause of his fall was the proximate cause of his death and that the cause of his fall was unknown or conjectural, but it was held that the cause of his fall was the remote cause and that the fall itself was the dominant and proximate cause of the injury that resulted in death.</p> <p>It also was held that the fall into the machine from the place in front of it where the employee was standing in the active performance of his duty arose out of and in the course of his employment.</p> <p>In the same case it was said that the test in such a case is to consider, whether the danger of injury from a fall into or upon the machinery then being used by an employee is an incident of his employment and one to which he \yould not have been exposed apart from that employment.</p>

<p>Equity Pleading and Practice, Master’s report, Appeal, Decree, Parties. Equity Jurisdiction, For an accounting. Trust, Duties of trustee. Estoppel. Witness, Cross-examination. Evidence, Of value.</p> <p>Where a suit in equity for an accounting was referred to a master, to find and report the facts, and he filed a report, reporting no evidence, and the exceptions filed to this report were overruled by an interlocutory decree from which no appeal was taken, and where the case then was referred to a second master to state the final account, and this master filed a report, stating the account, without reporting any evidence, and one of the parties filed exceptions to his report, which were overruled by an interlocutory decree, followed by a final decree, from both of which the same party appealed, it was held that the findings of fact stated in the first master’s report must stand except so far as modified by subsequent and additional facts stated in the second master’s report, and that, as no evidence was reported, no finding of fact in either report was open to revision and the only questions open were those raised by the exceptions to the second master’s report and those arising on,appeal from the final decree, namely, whether the.decree was within the scope of the bill and was warranted by the facts found by the two masters.</p> <p>Where in a suit in equity against trustees holding property for the benefit of three beneficiaries, one of whom was one of the trustees, for an accounting, it appeared that the defendant who was both a trustee and a beneficiary misappropriated certain articles of personal property belonging to the trust, but afterwards delivered some of these articles to the other two beneficiaries, it was held that the acceptance by the other two beneficiaries of the articles delivered to them was simply the receipt by them of partial distributions on account from the delinquent trustee, who happened also to be their co-beneficiary, and did not estop the two beneficiaries who had received these articles from requiring that defendant to account for a further large amount of like property misappropriated by her.</p> <p>In the case above described it was held that it was within the discretionary power of the trial judge, upon the cross-examination of one of the three beneficiaries by the misappropriating defendant, to refuse to permit the witness to be asked how the articles set off to her and to the plaintiff compared in value with those received by the defendant, this being a collateral matter.</p> <p>The cost of a chattel often is competent evidence of its value, where there is nothing to indicate that the time of purchase was too remote for the evidence to be of assistance in determining the value.</p> <p>In a suit in equity against trustees for an accounting, where it has been shown that one of the defendants, who also was a beneficiary, without justification removed to another State certain articles of personal property belonging to the trust and thus practically deprived the other beneficiaries of the opportunity of having the articles examined and appraised by experts, such defendant cannot complain rightly of the evidence of the value of the misappropriated articles to which the parties interested have been compelled to resort by the obstacles to a proper valuation of the articles voluntarily created by that defendant.</p> <p>In the suit above described, where only one of the defendant trustees had appealed from the final decree, the court declined to grant a request made at the argument before this court by the counsel for the other trustees, that the decree be modified in their favor, they not being parties to the proceeding in this court and the aspect of the case affecting them not having been presented.</p>

<p>Tort against an auctioneer for the alleged conversion of certain furniture belonging to the plaintiff, which was sold at public auction by the defendant, who was employed by one Ginsburg, the assignee of a mortgage on the furniture, and assumed to act under a power of sale contained in the mortgage. Writ in the Municipal Court of the City of Boston dated August 31, 1917.</p> <p>The facts found by the judge of the Municipal Court are stated in the opinion. At the request of the defendant the judge made the following ridings, which are referred to in the opinion:</p> <p>“5. That the assignee of the mortgage had a legal right to the possession of the personal property described in the mortgage for a breach of condition by the mortgagor.”</p> <p>“8. That, the mortgagee had a legal right to foreclose in the manner provided under the power of sale in the mortgage.”</p> <p>“ 11. The holder of the mortgage had a legal right to proceed with the foreclosure in accordance with the power of sale contained in the mortgage.</p> <p>“12. That the provision of chapter 727 of the acts of 1911, of this Commonwealth [the small loans act], concerning notice of sale to the mortgagor, did not affect the! rights of the holder of the mortgage in these proceedings to conduct his sale under the power granted in the mortgage.</p> <p>“13. A tender of the amount due under the mortgage was not valid unless it was made to the proper party by the mortgagor or a person who was duly authorized by her, or a person having an interest in the property.</p> <p>“ 14. That the husband of the mortgagor was not such a person having an interest in the property contemplated by law for the purpose of making a tender. ’ ’</p> <p>The judge made the following finding: “I find as a fact and rule as a matter of law, that the notice of foreclosure was not in accordance with .the terms of the statute. I find that the plaintiff did not ratify the foreclosure proceedings.” He found for the plaintiff in the sum of $350, and at the request of the defendant reported the case to the Appellate Division. The Appellate Division ordered the entry of judgment for the defendant; and the plaintiff appealed.</p>

<p>Frauds, Statute of. Guarantor. Contract, What constitutes.</p> <p>In an action for work, labor and materials performed and furnished on a building, where the statute of frauds is pleaded and the defence set up is that the work was performed for a corporation which occupied the building, and that the promise sued upon was an oral promise to pay the debt of another, the'judge ■ instructed the jury that the plaintiff could recover only upon the theory that the defendant in the first instance agreed to pay for the work, that he bound himself to pay for it directly and that his obligation was not that of a guarantor, and it was held that this instruction was correct.</p> <p>Where work had been done on a building occupied by a corporation, a statement by a minority stockholder in the corporation, who held no office in it, that “he would see that the bill , was paid,” is not evidence of a new and independent agreement of the stockholder to pay the bill, and, if it were, the agreement would be without consideration.</p> <p>Where work was required to be done upon a building occupied by a corporation and a person said to a contractor, who was seeking to do a part of the work, “I am not in on this thing now, but I have got some money coming to me and I am going to put some money into it, and if you consider my word wprth anything to you, you can go ahead and do the job, and you will get your money,” and where the same person said to the contractor, after the work was done, “that he considered the bill a personal obligation and would pay it himself if the company didn’t,” in an action against this person by the contractor it can be found that the defendant made a direct agreement to pay for the work which was not a promise to pay the debt of another.</p> <p>Where work was required to be done upon a building occupied by a corporation and a contractor desiring to do a part of the work talked with a stockholder in the corporation and another person in reference to the work, and they went to the place where the work was to be done, where the stockholder told the contractor what was to be done, and thereafter the contractor saw this stockholder as the work progressed and talked with him about it, and the stockholder “gave directions as to how the work should be done” and "thought cost plus on an alteration job was the best way to do the work, and all agreed,” in an action by the contractor against the stockholder, in which these things appeared, it was held that there was evidence to warrant the submission to the jury of the question whether the defendant made a direct agreement to pay for the work which was not a promise to pay the debt of another.</p>

<p>Petition, filed in the Supreme Judicial Court on February 7, 1918, under St. 1909, c. 490, Part III, § 70, by a domestic business corporation, organized on July 10, 1915, under the general laws of the Commonwealth, for the abatement of the amount of $639.20 alleged to have been assessed and exacted illegally as a part of the franchise tax imposed upon the petitioner for the year 1917, the valuation complained of being alleged to have included wrongly under § 43 of the statute the sums of money deposited by the petitioner in the savings departments of Massachusetts trust companies, which were treated by the Tax Commissioner as "securities which if owned by a natural person resident in this Commonwealth would be.liable to taxation.”</p> <p>The case was submitted to Carroll, J., upon a stipulation of the parties, in regard to the facts that would be testified to by the treasurer of the petitioner. The single justice found that the facts set forth in the stipulation were those that would be testified to by the petitioner’s treasurer, if material, and, at the request of the parties, reserved and reported the case upon the pleadings, the stipulation and his finding thereon for determination by the full court.</p> <p>St. 1908, c. 520, § 1, is as follows: "Every trust company soliciting or receiving deposits (a) which may be withdrawn only on presentation of the pass-book or other similar form of receipt which permits successive deposits or withdrawals to be entered thereon; or (b) which at the option of the trust company may be withdrawn only at the expiration of a stated period after notice of intention to withdraw has been given; or (c) in any other way which might lead the public to believe that such deposits are received or invested under the same conditions or in the same manner as deposits in savings banks; shall have a savings department in which all business relating to such deposits shall be transacted.”</p>

<p>Way, Public: defect.</p> <p>In 'this Commonwealth it is settled that the mere failure of a city to provide and maintain proper lights in its streets is not a defect under the highway act, even if the way unlighted is dangerous.</p> <p>If a city maintains as a public way an underground passageway, where no natural light can reach it, a failure to light a staircase forming a part of the way, by reason of which a traveller thereon is injured, does not give such traveller a right of action under R. L. c. 51, § 18.</p>

<p>Negligence, Of tenant of upper floor of building, In regard to sprinkler system.</p> <p>A tenant of the fifth floor of a building owned and maintained there a platform for storing property, which was raised seven feet above the floor. His servants removed a twelve inch beam, which rested on the floor and supported one corner of this platform and left that comer supported by two pieces of joist, two inches by four inches, one of them five feet long and the other two feet long, superimposed on the first, end for end, without their being fastened together, and both resting against the wall. Later the owner of the building, having been ordered by the authorities to do so, placed a sprinkler system on this floor, which included two and one half inch pipes for carrying water. One of these pipes was attached by two spikes to a timber which held up one end of the platform. Later the two foot joist, mentioned above, fell to the floor and let down one comer of the platform, which caused the sprinkler water pipe to break and to flood the floor, causing damage to the property of another tenant on the floor below, who brought an action for this damage against the tenant of the fifth floor. It appeared that the defendant took no part in the installation of the sprinkler system, was not consulted about attaching the pipe to the timber holding up one end of the platform and was not given any control over or responsibility for the repair of the system after it was installed. It also appeared that some vibration of the building was caused by the operation of laundry machinery by the defendant but that this was no greater after the sprinkler system had been put in than before. A trial judge found for the defendant. Held, that it was a question of fact, whether on all the evidence the damage was due to negligence, and, if so, whether the negligence was that of the defendant, and that the finding of the trial judge in the defendant’s favor on that issue would not be disturbed. .</p>

<p>Equity Jurisdiction, To cancel note and mortgage, Fraud, For an accounting. Fraud, By failure to disclose material fact. Agency, Duty of fidelity. Equity Pleading and Practice, Alternative relief.</p> <p>In a suit in equity by a woman against her sister and her sister’s husband to set aside a note and a mortgage given by the plaintiff to the defendants, it appeared that the plaintiff was the forewoman of a laundry, who never had bought any real estate before and had no knowledge of business except that connected with the laundry, that the defendant brother-in-law was engaged in the real estate business, in which his wife helped him, that the defendant sister told the plaintiff that, if the plaintiff had money to invest, they had a new house which could be bought at a sacrifice, that, if the plaintiff put her money into the house, she would double it in three years provided “she left it in,” that, induced by the advice of the defendants, the plaintiff bought the equity in the house, subject to two mortgages, and gave the defendants her note for $950 and a third mortgage on the house to secure it, that the defendants had bought the house recently for about $1,000 less than the price at which they sold it to the plaintiff and that they failed to disclose to the plaintiff the price they had paid, and she remained ignorant of it until after the whole transaction was completed, that the defendant brother-in-law, with the knowledge of his wife, acted as the plaintiff’s confidential adviser in the purchase and management of the property and collected the rents for her. Held, that the failure of the defendants, who stood toward the plaintiff in a relation of trust and confidence, to disclose to the plaintiff the price that they recently had "paid for the house entitled the plaintiff to relief, it having been the duty of the defendants to disclose to the plaintiff every material fact which affected the valúe of the property or which might induce or determine her action.</p> <p>In the case above described a master found “that the defendants did not fraudulently conceal any material fact from the plaintiff and did not make any false or fraudulent statements to her,” and it was held that, in view of the other facts found, this finding was immaterial, as, where such fiduciary relations exist, the duty to disclose does not depend on the motives or intentions of the persons whose duty it is to make the disclosure.</p> <p>In the same case it was held that it also was irrelevant that the property might have been worth at the date of the sale more than the plaintiff paid for it.</p> <p>In the suit above described the bill contained a prayer for general relief, and it was said, that the plaintiff not only had the right of rescission, but, if she elected to keep the property, might have the defendants ordered to account to her for their secret profit, as the plaintiff was entitled to keep the property at the price which it had cost the defendants when they conveyed it to her.</p>

<p>Tort for personal injuries sustained by the plaintiff, a police officer of the city of Medford, on August 7, 1914, from being knocked down on Winthrop Street in Médford by a motor car operated negligently by the defendant. Writ dated August 17, 1915.</p> <p>The answer, besides a general denial, contained an allegation of contributory negligence of the plaintiff.</p> <p>In the Superior Court the case was tried before Quinn, J. The evidence is described in the opinion. Before the introduction of the evidence concerning the second breaking of the plaintiff’s leg, mentioned in the opinion, the defendant seasonably objected to any evidence being introduced regarding the second breaking and its consequences. The judge admitted the evidence subject to the defendant’s exceptions.</p> <p>At the close of the evidence the defendant made a motion asking the judge to order a verdict for him.; The judge denied the motion. The defendant then asked the judge to make certain rulings, which are held by this court to have been covered by the judge’s charge so far as they properly could have been given. The jury returned a verdict for the plaintiff in the sum of $7,000; and the defendant alleged exceptions.</p>

<p>Complaint, received and sworn to in the Third District Court of Bristol on July 14, 1917, charging that the defendant at Dartmouth on June 30, 1917, did unlawfully engage in the business of transporting passengers for hire through the town of Dartmouth by means of a certain motor vehicle, without first having obtained from the selectmen of said town of Dartmouth a license for said vehicle.</p> <p>In the Superior, Court the defendant was tried before Raymond, J., upon an agreed statement of facts, containing the facts that are stated in the opinion. The defendant asked the judge to rule, “that the defendant cannot be convicted upon the agreed facts.” The judge refused to make this ruling, and the jury returned a verdict of guilty. At the request of the defendant the judge reported the case to this court for determination of the question raised by his refusal to make the ruling requested,</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 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 imposing 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 addition 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>St. 1917, c. 344, Part I, §§ 17 and 21, are as follows:</p> <p>“Section 17. A city or town in which a State highway lies shall at its own expense keep such highway sufficiently clear of snow and ice to be reasonably safe for travel. It shall have police jurisdiction over all State highways within its limits, and shall forthwith give notice in writing to the commission or . its employees of any defect or want of repair in such highways; but it may make necessary temporary repairs of a State highway without the approval of the commission.”</p> <p>“Section 21. Said commission shall annually, in January, certify to the Treasurer and Receiver General the amount of expenditures for repair of State highways in each city and town during the preceding year. One half- the amount of such expenditures, not exceeding fifty dollars a mile in towns with a valuation of less than one million dollars, and not exceeding one hundred dollars a mile in towns with a valuation of one million dollars and less than two million dollars, not exceeding two hundred dollars a mile in towns with a valuation of two million dollars and less than five million dollars, and in cities and towns with a valuation of over five million dollars the said one half of such expenditures, not exceeding two thousand dollars a mile in the aggregate and not exceeding five hundred dollars a mile in any one year, shall be made a part of the'State tax for such cities and towns, respectively, and any balance due may be made a part of the State tax in the succeeding three years; but when such expenditures exceed one thousand dollars a mile in any one year on any particular mile of road, the amount to be collected on account of such expenditures shall be computed only for the number of miles actually so improved. Said expenditures shall include all moneys expended for the above purpose from whatever source received, and when collected shall be available for use for repair and maintenance of State highways in addition to any other money that may be available therefor. If a city or town elects to make such repairs upon terms and prices agreed upon by it and said commission and under the direction of said commission, the commission, shall repay to it, from the annual appropriation for State highways, the amount expended therefor in excess of the amount which such city or town is required to repay under this section.”</p> <p>The case was submitted on briefs.</p>

<p>Replevin. Tender. Mortgage, Of personal property: redemption.</p> <p>In an action of replevin against the mortgagee of a chattel which the plaintiff has the right to redeem upon a proper payment or tender, it seems that a tender made at the time that the chattel is taken upon the replevin writ comes too late, as the writ already has been issued, and in the present case, where there was a previous valid tender, a further tender at the time of the service of the writ was disregarded by this court.</p> <p>Where, for the purpose of redeeming a motor car from a mortgage, the mortgagor attempts to pay, not only the amount of the mortgage debt and interest, but also the amount of a bill for painting the car which the mortgagor has agreed to pay, but the mortgagee, in order to prevent the redemption, himself pays the painter’s bill, which he does not owe, before the mortgagor can get a chance to pay it, this may be found to be a waiver by the mortgagee of the payment of the painter’s bill by the mortgagor, and the tender by the mortgagor of the principal and interest of the debt entitles him to redemption.</p>

<p>• Contract by a creditor of Joseph McGovern, late of Brockton, holding a claim against his estate to the amount of $430, on a policy of life insurance to the amount of $295 upon the life of Joseph McGovern, who died on November 19, 1915, the policy being alleged to have been assigned by Joseph McGovern to the plaintiff for a valuable consideration. Writ dated November 1, 1916.</p> <p>In the Superior Court the case was submitted to White, J., upon a “Statement of Agreed Facts,” which contained the facts that are stated in the opinion. The statement also stated that it was “further agreed, if material, that the funeral expenses of said insured were paid by a labor organization to which the insured belonged, and that no part of the same was paid by any one else.”</p> <p>The second provision of the policy, referred to in the opinion, was as follows: “The Company may make any payment provided for in this Policy to any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, for his or her burial or, if the Insured be more than fifteen years of age at the date of this Policy, for any other purpose, and the production by the Company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such Benefits have been paid to the person or persons entitled thereto, and that all claims under this Policy have been fully satisfied.”</p> <p>The judge, at the request of the parties, reported the case upon the statement of material facts, as agreed, for determination by this court, without making any decision thereon.</p>

<p>Tort by the administrator of the estate of Catherine Goldrick, late of Fall River, under St. 1907, c. 375, for causing the death of the plaintiff’s intestate without conscious suffering on March 20, 1915, by running into her with a motor car alleged to have been owned by the defendant and driven negligently by the defendant’s son, acting as her servant, on Davol Street in Fall River. Writ dated January 31, 1916.</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 on the ground that there was not sufficient evidence that the defendant owned the motor car at the time of the accident and not sufficient evidence that the defendant controlled the operation of the car immediately before and at the time of the accident. The plaintiff alleged exceptions.</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part HI, § H, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board, disapproving the bill of Michael Ruane, Esquire, for professional services rendered in connection with his appointment as administrator of the estate of John Mellon, a deceased employee, alleged to be payable by the insurer under St- 1911, c. 751, Part II, § 13, as amended by St. 1914, c. 708, § 7.</p> <p>The case was heard by Jenney, 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, declaring that nothing was due from the insurer to the administrator for the payment of bills rendered or contracted by him in the performance of his duties as administrator and ordering that the petition of the administrator for compensation for professional services be dismissed. The administrator appealed.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Procedure. Equity Pleading and Practice, Appeal. Superior Court.</p> <p>The workmen’s compensation act makes no provision for an appeal from a decision of the Industrial Accident Board to this court, giving a right of appeal to this court only from a decree of the Superior Court.</p> <p>A paper filed in the Superior Court, relating to a decree of that court that was entered upon a claim under the workmen’s compensation act, which is entitled “Objections to entry of decree by said Superior Court” and contains reasons for objections to the decree and a “motion for review,” is neither in form nor in substance an appeal from the decree.</p> <p>A memorandum filed by a judge of the Superior Court, referring to the paper described above and stating, “I understood and regarded the respondent . . . as claiming and taking an appeal by this paper,” does not make the paper an appeal, the judge having no power to give it this effect.</p> <p>In the same case the filing of further “ Objections to entry of decree by said Superior Court” was held to be neither in form nor substance an appeal.</p> <p>An attempted appeal to this court, not taken according to law, is not before the court and cannot bp considered.</p>

<p>Bill in equity, as amended, filed in the Superior Court on August 10, 1917.</p> <p>The proceedings are described in the opinion. The final decree dismissing the bill with costs, the material part of which is quoted in the opinion, was entered by order of Jenney, J, The plaintiff appealed.</p>

<p>Tort, brought originally against Jacob Perlis, the plaintiff’s former landlord, and Raphael Rosnosky, a constable, but discontinued against the defendant Perlis. At the trial the plaintiff elected to rely only on the second and fourth counts of his declaration, which are printed below. Writ dated April 2, 1915.</p> <p>The counts relied upon were as follows:</p> <p>“Count 2. And the plaintiff says that on or about the twenty-sixth day of March, A.D. 1915, the defendant Rosnosky, under instructions from the defendant Jacob Perlis, did with force and arms make an assault on the plaintiff, and then and there seized and laid hold of the plaintiff and then and there forced and obliged the plaintiff to go in and along divers public streets to a certain office, and then and there imprisoned the plaintiff and kept and detained him without any reasonable and proper cause whatever for a long time, contrary to law and against the will of the plaintiff, whereby the plaintiff was greatly hurt, bruised, wounded and greatly exposed and injured in his reputation, credit and business, and was put to great expense for counsel fees and loss of time by reason of the defendant’s acts.</p> <p>“Wherefore the plaintiff claims damages as alleged in his writ.”</p> <p>“ Count 4. And the plaintiff says that the defendant Rosnosky is a constable in the city of Boston, and that on or about January 27, 1915, the defendant Perlis gave him an execution against the plaintiff for possession of the premises numbered 1873 Columbus Avenue, Roxbury, Mass., and the .costs to the amount of Six 84/100 Dollars; that the defendant Rosnosky with others thereafter went to the plaintiff’s premises at 1873 Columbus Avenue for the purpose of ejecting the plaintiff from the premises;' that when the said Rosnosky arrived at said premises he was informed by the plaintiff’s wife and a physician, -who was in attendance on one of the plaintiff’s children, that one of the plaintiff’s children, who was then in bed, was seriously ill, and that the child could not be moved at that time; that despite this notice, the defendant Rosnosky removed the plaintiff’s furniture and-effects from the premises and put them on the street, and later in a storehouse, excepting a couch-bed, upon which the said sick child was lying; that the defendant Rosnosky then left the premises; that the plaintiff’s child’s sickness was greatly aggravated by reason of the acts of the defendants in removing from the premises all the clothing and household effects necessary for the child’s recovery, and from the disturbance created by the defendant Rosnosky and his agents in pulling down the furniture and removing it, the said child became very ill, requiring the constant attendance of a physician during its illness, and that those acts of the defendants toward the plaintiff’s child also affected the health of the plaintiff’s wife, and she became ill therefrom; that by reason thereof the plaintiff was put to great expense for medical attendance and medicine for both his wife and child.</p> <p>"Wherefore the plaintiff claims damages as alleged in his writ.”</p> <p>In the Superior Court the case was tried before Hitchcock, J. The evidence for the plaintiff is described in the opinion. At the close of the plaintiff’s evidence the defendant made a motion asking the judge to order a verdict for him. The judge submitted to the jury two questions, which with the answers of the the jury were as follows:</p> <p>“1. Did the defendant Rosnosky know before he had made the arrest on the execution that a writ of supersedeas had been issued, commanding him to refrain from further action on the execution?” The jury answered, "Yes.”</p> <p>“2. If the plaintiff was unlawfully arrested by the defendant Rosnosky, what damages did he suffer?” The' jury answered, “$250.”</p> <p>Thereupon the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Turner and William W. Towle trustees under the will of Whipple N. Potter, late of Boston, and the codicil thereto, to hold certain real estate in North Brookfield described in the opinion for the purposes there named. The case was heard by Pierce, J., who made a memorandum of decision, containing the facts which are stated in the opinion.

<p> Mechanic’s Lien. </p> <p>Upon a petition to establish a mechanic’s lien for work and materials under R. L. c. 197, it appeared that the work and materials were furnished under a contract in writing “for the construction of a First—lass Low Pressure Steam Heating Apparatus,” in which it was declared that the specifications were “intended to cover everything necessary to make a first class warming apparatus,” that after the work was supposed to have been completed and the heat- ■ ing plant had been in use for more than a month the petitioner and the respondent each received a notice in writing from the State boiler inspector that' a certificate of inspection, without which the boiler could not be operated. lawfully, would be withheld until certain specified changes were made in the safety valve and the steam gouge, that immediately on receiving the notice the petitioner went to the premises with the inspector, who showed him what work was required, and that within two days from the time of receiving the notice the petitioner had completed the changes in compliance with the notice. The petitioner’s statement of lien was filed in "the registry of deeds within thirty days after the completion of such changes. There was nothing to show that the work upon these changes was not done in good faith or that it was done for the purpose of reviving a lien. Held, that the work upon the changes was required for the completion of the petitioner’s contract, and that he was entitled to have his lien established.</p>

<p>Practice, Civil, Rulings and instructions. Limitations, Statute of, Special. Executor and Administrator, De bonis non.</p> <p>Where a judge hearing a case without a jury refuses to pass on certain requests for rulings, this is equivalent to a refusal to make the rulings requested.</p> <p>Under R. L. c. 141, § 17, (now amended by St. 1914, c. 699, § 7,) the liability of an administrator de bonis non in an action of contract is limited to two years after he gave notice of his appointment unless new assets have come to his hands, and where he is made a party to a pending action originally brought against a former administrator of the same estate, the action cannot be maintained unless the administrator de bonis non has been brought into court as a party within such two years.</p>

<p>Bill in equity, filed in the Superior Court on June 12, 1918, by the lessee under a lease in writing dated July 1, 1915, of the store numbered 423 on Park Avenue in Worcester against the lessor praying for an order restraining the defendant from letting another store in the same building numbered 431 on Park Avenue to be used for a grocery, a provision, meat or fish busi ness in alleged violation of a covenant in the lease. '</p> <p>The case was heard by Sanderson, J. The material covenant in the lease is quoted in the opinion, where also the evidence in régard to the circumstances existing at the time of the execution of the lease is described. The judge filed a memorandum of decision, which concluded as follows:</p> <p>“The provision in the plaintiff’s lease which is the principal cause of the controversy is, that the defendant shall not rent any part of the building on premises in which the above said stores are located for any grocery, provision, meat or fish business except the Cloverdale _Store now located at No. 431 Park Avenue.</p> <p>“There seems to have been no reason for making this exception, except the fact that the Cloverdale Company then had a right to continue to do business at 431 Park Avenue because of its written lease.</p> <p>“The parties apparently intended to eliminate competition in the plaintiff’s business so far as they could legally do so.”</p> <p>The judge found that the provision in the plaintiff’s lease above referred to created, an exception in favor of the Clover-dale Company only, and that it was not intended to give and did not give the defendant the right to lease 431 Park Avenue for a provision, grocery, meat or fish business after it ceased to be occupied by the Cloverdale Company, as the Cloverdale Store.</p> <p>He ordered that a decree should be prepared enjoining the defendant from permitting the store at 431 Park Avenue to be rented, leased or occupied for the purpose of carrying on any grocery, provision, meat or fish business, and awarding costs to the plaintiff taxed as in an action at law.</p> <p>Later by order of the judge a final decree .in accordance with the memorandum of decision was entered; and the defendant appealed.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1918, and afterwards was submitted on briefs to all the justices. '</p>

<p> Judgment. Res Judicata. </p> <p>In an action in the Superior Court for alleged breach of a contract in writing to employ the plaintiff as a salesman for one year at a salary of $50 a week and a further compensation at the end of the term, the defendant set up the alleged defence that the plaintiff broke his contract and that the defendant discharged him rightly for that reason. The plaintiff contended that a previous judgment of the Municipal Court of the City of Boston in favor of the plaintiff precluded the defendant from showing that the plaintiff had broken his contract before the date of that judgment. It appeared that the previous action was brought, seven months after the date of the contract of employment, upon an account annexed, the first three items being of $50 each for services rendered by the plaintiff as a salesman in three successive weeks, each of the last two weeks ending after the date of the writ, and the other items being for expenses. The judge of the Municipal Court had found that the plaintiff was discharged by the defendant without justification. He had ruled that the plaintiff could not recover on the two items for salary that became due after the date of the writ and had found for the plaintiff upon the first item for salary and for certain expenses. Judgment was entered in the Municipal Court for the plaintiff in accordance with this finding. Held, that this judgment was conclusive of the fact that the plaintiff had performed his contract up to the end of the week for which he was held to be entitled to his salary, and that the defendant in the action in the Superior Court was precluded from showing the contrary.</p>

Tort against a surgeon for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating on the plaintiff for hernia on March 26, 1916, and, after having ascertained that the plaintiff was suffering from a hernia on the right side of his abdomen, negligently performing an operation on the left side of the plaintiff’s body without the plaintiff’s knowledge or consent. Writ dated October 3, 1916.

<p>Negligence, Invited person, Of one controlling real estate, Unguarded well in floor of building, Contributory.</p> <p>An inventor of a pattern for a mechanical device, who had sent it to a foundry to have a casting of it moulded,, réceived a message from the foundry that there was some trouble with the casting and asking him to have some one come over to see about the measurements. The inventor went himself to the foundry and, finding no one in the office, went into the moulding room. There he was shown the casting but it was too dark in the moulding room to see the measurements and the plaintiff, carrying the casting and accompanied by two workmen of the foundry, walked to the rear of the foundry room and toward the outer door of the “tumbling room” to get where there was more light, and in doing so stepped into a well in the floor and was injured. In an action brought by him against the proprietor of the foundry for his injuries thus sustained, it was held that the jury were warranted in finding that the plaintiff was on the defendant’s premises by invitation and that it could not be said as matter of law that the invitation was confined to one particular part of the foundry.</p> <p>In an action against the proprietor of a foundry for personal injuries sustained by reason of falling into a well in the floor of the foundry, to which the plaintiff had been invited for the purpose of inspecting a pattern for a casting, it appeared that the plaintiff never had been in the building before and was not told of the existence of the well, that he was walking to the rear of the foundry room toward an outer door to get where there was more light, looking at the pattern and measuring it when, as he testified, “the first thing I knew my right foot went down this hole.” Held, that, it was a question of fact for the jury whether the defendant’s duty did not require him to guard the well or to see that the plaintiff should be warned of its existence, 'anti accordingly that the question of the defendant’s negligence was for the jury.</p> <p>In the case above described it appeared that the plaintiff did not look down to see where he was stepping, but it was pointed out that the jury, who viewed the premises, might have found that the well was not so obvious that the plaintiff would have noticed it by looking, and it was held that, with the presumption created by St. 1914, c. 553, it could not be said that it was error for the presiding judge to submit to the jury the question of the plaintiff’s contributory negligence.</p>

<p>Tort for damage by water to the plaintiff’s wall-paper stock stored on the third floor of the building numbered 10 and 12 on Lyman Street in Boston, alleged to have been caused by the negligence of the defendant and, his servants, who occupied the fourth floor of the same building also for the storage of wallpaper. Writ in the Municipal Court of the City of Boston dated December 30, 1916.</p> <p>At the trial in the Municipal Court the judge refused to rule upon the evidence, which is described in the opinion, that “On all the evidence the plaintiff is not entitled to recover. ” He found for the plaintiff in the sum of $163.35, 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>

Bill in equity, filed in the Superior Court on April 20, 1917, by three stockholders in the Northern Brass Company, a corporation, one of whom, the plaintiff Boyajian, was alleged also to be a judgment creditor of that corporation, against five other stockholders in the corporation, two of whom were directors, seeking to restrain the foreclosure of certain mortgages executed by the corporation, as described in the bill, to cancel those mortgages and for an accounting, on the…

<p>Negligence, Of one controlling real estate, Contributory. Landlord and Tenant.</p> <p>In an action by a woman, who occupied with her husband the top floor of a three-story apartment house, against the owner of the house for personal injuries caused by the giving way of a step forming part of a “bulkhead” stairway leading from the yard of the house to the cellar as a common stairway for the use of all the tenants, it could have been found that the step which gave way was apparently sound, but that the accident disclosed the fact that a bracket on the stringer which supported the step was broken and rotted, that two or three weeks earlier the defendant had been notified that the bottom step was missing and that the bulkhead doors were in a broken condition, allowing the snow and rain to fall on the steps. Held, that there was evidence for the jury of the defendant’s negligence.</p> <p>In the action above described the answer alleged contributory negligence of the plaintiff. Although it appeared that the stairs were in poor condition and often were wet, the plaintiff testified that they looked “all right to go down” and that on this particular day she was using more than the usual amount of care. Held, that it could be found that the defect which caused the plaintiff’s injury was not an obvious one and that under St. 1914, c. 553, the question of the plaintiff’s negligence was for the jury.</p>

<p>Indictment, found and returned in the Superior Court on October 6, 1917, charging thé defendant with the crimes of forging certain instruments, each purporting to be “an accountable receipt for money,” and with uttering such forged instruments as true and with the larceny of money, all in twenty-five counts, the substance of the crimes charged being stated in the opinion.</p> <p>The defendant was tried before Dana, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to rule and instruct the jury as follows:</p> <p>“As to the counts on forgery:</p> <p>“2. Criminal intent is not shown and a person is not guilty of the offence of forgery if he in good faith or in ignorance of the effect of his act makes or alters an instrument.”</p> <p>“5. Where one in ignorance or mistake as. to fact commits an act which but for such mistake would be a crime there is an absence of malice and of criminal intention which is an essential element of the crime of forgery, and the general, rule is that such ignorance or mistake of fact will exempt one from criminal responsibility, and if the jury are satisfied that the evidence discloses this situation they must acquit the defendant.”</p> <p>“7. If the jury are satisfied that the defendant did alter the various receipts introduced in evidence by the government, but under an honest belief that he had a right to do so, and had a right to act in the way in which he did under all of the circumstances that surrounded him as shown by the evidence, although he had in fact no such legal right, he cannot be found guilty of forgery and a verdict must be for the defendant.</p> <p>“8. If the jury shall find upon the evidence in the case that the acts alleged in the various counts are as alleged in the various counts of the indictment, but that the defendant acted under the honest belief that he had a right to so act, although he may have been mistaken and that he did these acts for the purpose of procuring money which was actually his due, there can be no intent to defraud any one by the commission of these acts and he is not guilty of forgery.</p> <p>“9. It is true as a proposition of law that no fraud is committed if a person gets no more than is actually due him, for no one has suffered or can suffer under those circumstances.</p> <p>“10. If the jury shall find that the reason for the actions of the defendant in making the alterations of the receipts put in evidence by the government was the request of Mr. Atteaux that he should so procure his money which was due him from the corporation that the repayment of the money to him should not disclose facts to an expert bookkeeper, which would result in an investigation of the disposition of the moneys which had been paid to Atteaux for the purposes of the business by the defendant and that the bookkeeper had been thrown off his guard, it is not evidence of an intent to defraud, because the said bookkeeper could not in that way be put to any loss whatever by the acts complained of, and if that were the reason and the jury should so find they- cannot find the defendant guilty of forgery because of the lack of intent to defraud.”</p> <p>“As to the larceny counts:</p> <p>“2. It is the1 duty of the jury to look into all of the circumstances surrounding the defendant and his acts and from that to form an opinion of the intention which actuated the defendant at the time of the taking of the moneys complained about, and however faultily a person may act against the law in other respects, yet if in the judgment of reason and charity he did not mean to steal, or if it is doubtful in the minds of the jury whether there was an intent, it is their duty to acquit him. Commonwealth v. Robinson, Thach. C. C. 230.</p> <p>“3. It is perfectly true that if one was in error even in regard to his right to procure money for the payment of a debt due him, and he acted improperly in regard to the matter and in the manner of procuring it, still if he honestly thought he had a right to the money, it must exclude the idea of a felonious taking.”</p> <p>“6. Tha.t this defendant cannot be found guilty of larceny of the moneys complained of as having been taken in the indictment, if he took the money under the honest belief that he had a legal right to take it, although he might have been mistaken in that belief.</p> <p>“7. Although it is necessary that the claim of right must be a bona fide one, yet whether the claim is made honestly is a question of fact for the jury and if the jury are in doubt they must acquit.</p> <p>“8. Taking money with intent to appropriate it to the payment of a debt due from the party from whom it was taken may be unlawful, but if it is done with an honest belief in the legal right to do so, the taking does not constitute larceny and the jury must acquit.</p> <p>"9. Even if the jury should find that the defendant used altered receipts for the purpose of making false and fraudulent representations in order to obtain money which he believed to be absolutely his due and which was his due, and by that means obtained no more than was rightfully due him from the corporation, he cannot be convicted of larceny, for no man can have a fraudulent intent when he obtains no more than is actually due him.</p> <p>“ 10. Where one in ignorance or mistake as to facts commits an act which but for such mistaké would be a crime there is an absence of the malice or criminal intention which is generally an essential element of the crime, and the general rule therefore is that such ignorance or mistake of facts will exempt the defendant from criminal responsibility and he must be acquitted if the jury shall find upon all the evidence that these elements existed.”</p> <p>“As to accountable receipts: ,</p> <p>“1-8 (inclusive). . . . that the paper introduced in evidence in the attempted proof of the allegations in the . . . counts of the indictment is not an accountable receipt and the changing of the paper is not forgery and its delivery to any person would not be uttering.</p> <p>“9. That if the jury shall find that in the procuring of the moneys in repayment to him in the manner in which it is disclosed they were procured, the fact that the bookkeeper, Miss Rodden, or the stenographer, Miss Ebbs, may incidentally have been deceived is not evidence of intent to defraud because neither one of the persons mentioned could in any way have been put to any loss whatever by the acts complained of either under the counts for forgery or for larceny, and if the defendant honestly believed that he had the authority to do the acts complained of and honestly believed that he had the right to procure the money and honestly believed that Mr. Atteaux had the right to agree with him that the money should be so repaid although he might have been mistaken as to the result of the situation he cannot be convicted.”</p> <p>The judge refused to make or give any of these rulings or instructions as requested, and gave other instructions to the jury, the essential parts of which are described in the opinion.</p> <p>The jury returned a verdict of guilty; and the defendant excepted to the refusal of the judge to make or give the rulings or instructions requested and to certain portions of the charge raising the questions which are mentioned and disposed of in the opinion, and also excepted to the admission and exclusion of certain evidence as described in the opinion.</p>

<p>Tort by the administratrix of the estate of Edward L. Powers, late of Cambridge, under It. L. c. 171, § 2, as amended by St. 1907, c. 375, for causing the death of the plaintiff’s intestate by running over him with a motor car driven negligently by a servant of the defendant acting within the scope of his authority on Washington Street in Weymouth near its junction with Main Street in that town at about half past six o’clock in the evening of October 12, 1916.. Writ dated November 21, 1916. .</p> <p>The defendant’s answer, besides a general denial, contained an allegation that the plaintiff’s intestate was not in the exercise of due care.</p> <p>In the Superior Court the case was tried before Irwin, J. The evidence is described in the opinion. At the close of the evidence the defendant asked for certain rulings, among which were the following:</p> <p>“1. On all the evidence the plaintiff cannot recover against this defendant.”</p> <p>• "8. The presumption raised by St. 1914, c. 553, is not of itself sufficient to prove the due care of the plaintiff’s intestate as required under the death statute.”</p> <p>The judge refused to make either of these rulings, but made the second ruling requested by the defendant, which was as follows:</p> <p>"The plaintiff cannot recover unless Powers, the intestate, was actively and actually in the exercise of due care.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $4,500; and the defendant alleged exceptions. -</p>

<p>Witness, Cross-examination to show bias. Evidence, Competency. Practice, Civil, Exceptions.</p> <p>In an action for personal injuries the defendant called a medical expert, who testified that he had examined the plaintiff and that she had not suffered any permanent injury. The plaintiff’s counsel asked the witness, on cross-examination, “Who asked you, doctor, to examine this woman?” and the witness answered, “Mr. C, representing the Casualty Company of America, the manager.” The defendant asked the judge to order this answer stricken out on the ground that it disclosed the insurance and was prejudicial to the defendant. The judge allowed the answer to stand but in his charge instructed the jury that, although the evidence was admitted properly, the jury were not to take into account the fact that the defendant was insured, that this was “of absolutely no consequence” and the jury were to disregard it. Held, that the admission of the evidence was proper for the single purpose of showing bias, and that with the instruction of the judge, which it must be assumed was followed by the jury, the defendant was not shown to have been prejudiced by the admission of the evidence thus properly restricted in its application.</p> <p>In the same case it was pointed out that the part of the witness’s answer which consisted of the name of the person who asked the doctor to examine the woman, without the explanation that he represented the insurance company, was competent for all purposes, but that the request of the defendant’s counsel was that the judge should order the whole of the witness’s answer to be stricken out without separating the competent part, so that the refusal of the request by the judge afforded no ground for exception.</p>

<p>Two actions of tort, both against a corporation engaged in the business of manufacturing, selling and installing ovens, the first by a baker carrying on his business at the building numbered 643 on South First Street in New Bedford, and the second by the owner of that building, who was the mother of the plaintiff in the first action, for negligence of the defendant’s agents and .servants in constructing and installing a baker’s oven, under the terms of a contract of conditional sale, in the building mentioned so carelessly that the building was set on fire, whereby the stock in trade and fixtures of the plaintiff in the first case were damaged and destroyed and the building of the plaintiff in the second case was damaged. Writs dated December 8, 1915.</p> <p>In the Superior Court the cases were tried together before Raymond, J. The evidence is described in the opinion. At the close of the evidence the defendant filed a motion in each case asking the judge to rule that the plaintiff could not recover and to order a verdict for the defendant. The judge denied these motions and submitted the case to the jury in a charge which included the following ’instruction: “The truss-beam being there, the question for the jury is whether they treated the situation in a reasonably careful manner, no duty resting on the defendant to take away the truss-beam, but, the- truss-beam being there, the floor being there, did they do what reasonably careful men would do, treating that situation that actually existed? If they did, they were not negligent. If they did not, they were negligent.”</p> <p>The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $1,700 and in the second case in the sum of $800. The defendant alleged exceptions to the refusal to order verdicts for it and to the instruction quoted above.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board ordering the insurer to pay to Thomas Courtney, an employee of the Worcester Gas Light Company, a weekly compensation of $10 from July 20, 1917, the date upon which the insurer last paid compensation under the agreement mentioned in the opinion, to October 3, 1917, the date upon which the employee resumed his employment, and also to pay to such employee a weekly compensation of $2 from October 3, 1917, to January 24, 1918, for partial incapacity, such last named compensation to be continued in accordance with the requirement^ of the act, 'the total amount of compensation to January 24, 1918, being $139.43.</p> <p>In the Superior Court the case was heard by O’Connell, J. The facts which appeared by the report of the Industrial Accident Board are stated in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p> <p>St. 1911, c. 751, Part III, § 5, as amended by St. 1917, c. 297, § 2, is as follows: “If the association and the injured employee fail to reach an agreement in regard to compensation under this act, or if they have reached such an agreement, which has been signed and filed in accordance with the provisions of this act, and compensation has been paid or is due in accordance therewith and the parties thereto then disagree as to the continuance of any weekly payments under such agreement, either party may notify the Industrial Accident Board which shall thereupon assign the case for hearing by a member of the board.”</p> <p>St. 1912, c. 571, § 9, is as follows: “Section four of Part III of said chapter seven hundred and fifty-one is hereby amended ... so as to read as follows: — Section 4. If'the association and the injured epaployee reach an agreement in regard to compensation under this act, a memorandum of the agreement shall be filed with the Industrial Accident Board and, if approved by it, thereupon the memorandum shall for all purposes be enforcible under the provisions of Part III, section eleven. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”</p> <p>The case was submitted on briefs.</p>

<p>Contract against John Cochrane, Pauline Cochrane and J. Eugene Cochrane for $11,867.41 upon an account annexed as follows:</p> <p>“July 1, 1912, to commission at five per cent on sale price of $250,000 of real and personal property of the Danielsonville Cotton Company at Killingly, Connecticut ' $12,500.00</p> <p>“ Credit by money advanced to cover expenses of travelling, advertising, etc. 632.59</p> <p>$11,867.41”</p> <p>Writ dated January 14, 1916.</p> <p>Later a suggestion was filed stating the death of the defendant John Cochrane on February 13, 1916, and on March 16, 1917, by agreement of counsel in open court the plaintiff discontinued his action against the defendant John Cochrane without costs.</p> <p>In the Superior Court the case was tried against the other two defendants before J. F. Brown, J. The plaintiff’s evidence is described in the opinion. At the close of the plaintiff’s evidence the judge, upon motion of each of the defendants, made the following rulings:</p> <p>■ “1. That the plaintiff has not made out a case against this defendant.</p> <p>“2. That upon all the evidence submitted by the plaintiff the jury. would not be warranted in finding a verdict against the defendant.</p> <p>“3. That it appears, upon the plaintiff’s own testimony, that whatever the defendant did in the way of sale of the corporation property was done in behalf either of the Danielsonville Cotton Company or the Cochrane Manufacturing Company, and not in his individual capacity.</p> <p>“4. That the plaintiff has submitted no evidence whatever which would warrant a finding against this defendant.</p> <p>“5. That there is no evidence that in anything that J. Eugene Cochrane did he was acting as agent for his intestate.</p> <p>“6. That upon the evidence the sale on which the plaintiff claims a commission was on materially different terms from those on which plaintiff claims he was authorized to arrange for sale.”</p> <p>The judge ordered a verdict for the defendants; and the plaintiff alleged exceptions. ,</p> <p>At the trial certain evidence of the plaintiff was admitted by the judge subject to the defendants’ exception, and it was contended by the defendants in this court that this evidence was incompetent and should not be considered by this court in determining the case on the plaintiff’s evidence, although the defendants, a verdict having been ordered in their favor, filed no bill of exceptions.</p> <p>R. L. c. 177, § 6, is as follows: “In an action against two or more defendants upon a contract express or implied, the plaintiff shall be entitled to judgment against such defendants as are defaulted and against those who upon trial are found liable, although it is found that all the defendants are not jointly liable.”</p>

<p>Practice, Civil, Argument of counsel, Conduct of trial, Judge’s charge, Exceptions: curing error. Negligence, Rules of defendant corporation. Evidence, Competency, Failure to call witness, Presumptions and burden of proof.</p> <p>In an action against a street railway corporation for personal injuries sustained by a collision, with a motor truck, of an open electric car of the defendant, on the running board of which the plaintiff was being transported as a passenger, it is improper for the plaintiff’s counsel in his closing argument to the jury to ask the jury whether they expect to be treated, when they go on cars of the defendant’s line, the way that the plaintiff was treated by the defendant, to tell them that they are making the law for the county in which the case is being tried, that the defendant is a corporation having the power to take their land by right of eminent domain on which to lay its tracks and that in consideration of those privileges it is charged with certain duties toward its passengers.</p> <p>In the case above described the defendant’s counsel in an intermission in the plaintiff’s closing argument excepted to the statements of the plaintiff’s counsel above described and asked the presiding judge to instruct the jury to disregard them. In his charge to the jury the judge said, “During the argument of the counsel for the plaintiff he made certain statements to which the counsel for the defendant rose and objected. One was with reference to the right of the railway company to take your land by eminent domain; the other was with respect to your making law in these cases for Plymouth County. It is sufficient to say, perhaps, as to both of those that neither statement has any bearing on any issue that you are trying.” Held, that the impropriety of the argument of the plaintiff's counsel, to which the defendant excepted, was not merely that the statements of the counsel were wrong, which they were, but that the use of them was an appeal to the jury to act in violation of their duty as jurors, and that, the instruction of the judge was not an instruction, as it should have been, to disregard this improper argument, so that the judge’s charge did not cure the error and the defendant’s exception must be sustained.</p> <p>In the same ease it was held that the defendant’s counsel, by taking an exception to the improper portion of the argument and asldng the judge to instruct the jury to disregard it, had saved the defendant’s right to have its exception sustained unless the judge cured the error that had been committed, which he did not do.</p> <p>In an action against a street railway corporation for personal injuries sustained by reason of a collision, when the plaintiff was a passenger on a car of the defendant, the plaintiff was allowed to introduce in evidence certain rules of the defendant, but there was no evidence of any violation of any of these rules. The judge instructed the jury as follows: “H you find they did not violate any of the rules, of course the rules are of no consequence in this case. If you find that they did violate one or more of them and such disobedience contributed to the accident, that would be evidence tending to show negligence, for which the defendant is liable.” Held, that the rules in question should not have been admitted in evidence, and that it was error for the judge to deal with them as he did in his charge.</p> <p>In the case above described the defendant’s conductor, who at the time of the accident was in charge of the car in question, at a former trial of the case had been called and examined as a witness by the plaintiff and also had been called and examined by the defendant. At the later trial he was in court but neither the plaintiff nor the defendant called him as a witness. The defendant asked the presiding judge to instruct the jury that, “Under the circumstances, and upon all the evidence in this case, the jury cannot properly draw any inference against this defendant from its failure to call as a witness'. . . the conductor of the car involved in the accident.” The judge refused to give this instruction. Held, that the instruction requested by the defendant should have been given.</p>

<p> Devise and, Legacy. Power. Landlord and Tenant. </p> <p>A testator devised and bequeathed all his property to his wife “for her natural life, with power to sell or mortgage said property if she considers it necessary,” leaving the femainder to his children upon her death. The widow made a lease of certain real estate that had belonged to her husband, and died while three years of the term of the lease were unexpired. In a suit in equity by the tenant under the lease against the children of the testator to enjoin them from interfering with his quiet enjoyment of the property, it was held that the power of the widow to sell the property included the power to lease it, and that accordingly the lease was good against the defendants, and the tenant was entitled to an injunction.</p>

<p>Surety. Bond. Waiver. Contract, Ratification.</p> <p>Where a surety company has become the surety upon a bond of a building contractor, given by him to a landowner for the faithful performance of a contract to build a house on the land of such owner to be completed by November 1 of that year, if without the knowledge of the surety the landowner and the contractor make an agreement extending the time for the completion of the house until Christmas of that year, the surety is discharged.</p> <p>Whether a surety on a bond for the faithful performance of a contract between a landowner and a building contractor can be held under any circumstances to have ratified a further contract made between the landowner and the contractor for their own benefit and convenience, or whether the principle of ratification has no application to such a case, here was mentioned as a question which it was unnecessary to pass upon because there was no evidence of the necessary elements of a ratification.</p>

Contract against Alvan T. Fuller, doing business tinder the name Packard Motor Car Company of Boston, for the breach of an alleged contract to sell and deliver a Packard motor truck to the plaintiff. Writ dated September 4, 1915. In the Superior Court the case was tried before White, J. The evidence is described in the opinion.

<p>Contract upon the bond printed below, against the defendant O’Neill as principal and the defendant Noonan as surety, alleging that the defendant O’Neill was employed'by the plaintiff as a driver and collector and that he committed a breach of the bond by failing to account for certain packages of’ property of the plaintiff received by him. Writ in the Municipal Court of the City of Boston dated June 15, 1917.</p> <p>The bond was as follows:</p> <p> 7 </p> <p>"Know all men by these presents that we Patrick William O’Neill of Boston in the county of Suffolk as principal and Sarah N. Noonan as surety stand firmly and justly bound unto the Boylston Bottling Company, a corporation duly organized and existing by law, and having a usual place of business in Boston in the full and just sum of $500 to the payment of which to the said Boylston Bottling Company, its successors and assigns, we hereby bind ourselves, our heirs, executors and administrators.</p> <p>“The condition of this obligation is such that if said Patrick William O’Neill, who is about to be employed by said Boylston Bottling Company, shall -render a faithful account of all merchandise delivered to him and money collected by him and shall return all packages received by him from the company or account to the company for the value of any not so returned, then this obligation shall be void and of no effect but otherwise shall remain in full force and virtue.</p> <p>“Witness our hands and seals this 4th day of November 1916.</p> <p>Patrick W. O’Neill [seal]</p> <p>Sarah N. Noonan [seal]</p> <p>79 Park Drive Brookline.”</p> <p>The answer of the defendant O’Neill contained the allegation “that, if the plaintiff shall prove a contract upon which the alleged bond was given, the same was illegal.” The answer of the defendant Noonan, as amended, contained an allegation "that, if it shall appear that the principal upon the bond, alleged in the declaration, ever did any of the things set out in the plaintiff’s declaration, that the same were done or performed under a contract in violation of the laws of this Commonwealth: r 7 and this defendant is not to be held to pay for any amount.”</p> <p>The material evidence at the trial in the Municipal Court is described in the opinion. At the close of the evidence the defendant Noonan asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling and found for the plaintiff in the sum of $451.45. At the request of the defendant he reported the case to the Appellate Division.,</p> <p>The Appellate Division made an order that the report be dismissed; and the defendant Noonan appealed!</p> <p>The description of a license of the fourth class to sell intoxicating liquors contained in R. L. c. 100, § 18, is as follows:</p> <p>“Fourth class. To sell liquors of any kind, not to be drunk on the premises.”</p>

<p>Agency, Existence of relation, Scope of authority. Negligence, In use of highway, Contributory, Motor vehicle.</p> <p>In an action, by an administrator against copartners doing business under the name of an ice cream company, for causing the death of the plaintiff’s intestate by running over him with a' motor truck, if it appears that the motor truck which ran over the intestate was marked with the name of the ice cream company, that it had a couple of barrels on it and was driven by one G, and if one of the defendants, when asked the question, “If he [G] was out with an automobile truck of the ... ice cream company, you would say that he was about your business? ” answers, “Naturally, yes,” there is evidence that at the time of the accident the driver of the truck was in the defendants’ employ and was engaged in their business.</p> <p>If a boy eleven years of age, who has been on a motor truck that was moving on the right hand side of a city street with another motor truck moving behind it on the same side of the street, gets off the truck on which he was and, after looking ahead for vehicles approaching from the opposite direction, starts to walk in a diagonal direction to his left across the street, which is paved with wooden blocks, and if the motor truck behind turns to the left to go by the one in front of it, sounding no horn and making little or no noise, and, jyhen the boy is within six feet of the gutter, a companion who has remained on the first truck yells to him, and the boy then starts to run and is struck and killed by the motor truck when he is about two feet or one foot from the left hand curbstone, there having been ample room for the truck to pass the other truck in front of it without running down the boy, in an action, brought after the enactment of St. 1914, c. 553, against the owner of the motor truck, whose servant was driving it in the course of the owner’s business, for causing the death of the boy, in which these facts are shown, the questions whether the boy was negligent and whether the defendant’s servant was negligent are for the jury.</p>

<p>Way, Private. Negligence, In maintenance and operation of gate.</p> <p>In an action for personal injuries sustained when the plaintiff was eleven years of age by reason of a gate of the defendant falling upon him, there was evidence that the plaintiff was on a private street, that there were houses on this street, in one of which the plaintiff’s father lived, and other buildings including those of the defendant, that this street was used for “free traffic” and “foot travel” in the same manner as “any other street,” and that the plaintiff had no other means of access to his home. There was no evidence that the defendant had title to any portion of the land under such way or even to the land abutting on the way which it occupied for the transaction of business. Held, that on this evidence it could be found that the plaintiff when injured was not- a trespasser nor a mere licensee and that the defendant accordingly was required to take reasonable precautions in the maintenance and management of its gate not to injure the plaintiff when he was in this private street in the exercise of due care.</p> <p>In the case above described it appeared that before the accident happened the plaintiff in going out from the defendant’s yard had climbed over the gate, which then was held up by a rope, but it appeared by the evidence that the plaintiff’s act in climbing over the gate did not contribute to its subsequent fall when the rope was unfastened. It also appeared that the plaintiff, after he was in the private street, walked back to the defendant’s gate and looked through an opening between the side of the gate and a building to see whether his companions were coming from the yard and then, instead of going directly home, took about six steps from the gate and stooped down to look under another gate on the opposite side of the street into a yard to see some dogs, that while he was in this position the defendant’s gate, on which the rope had been unfastened by a servant of the defendant, fell upon him, causing the injuries. Held, that it could not have been ruled as matter of law that the plaintiff acted carelessly, and that the question, whether he was negligent, was for the jury.</p> <p>In the same case, it appeared that the gate was maintained and used by the defendant in its woodworking business. There was evidence that an overhead iron track, on which the gate originally had been hung, had been removed and that the travelling wheels, except two that were useless, had been removed, that at the time of the accident the gate rested on a roller of wood placed on the ground, by the use of which it was opened and closed, that, when it was closed, the upper part of the gate leaned at one end againstia shed and at the other end was secured and held in an upright position by a rope fastened to an iron hook in the side of a building or to a steel rail that ran across the passageway, and that the gate had been tied up in this way by the defendant’s yard foreman, when at some time before the accident he had found the gate lying on the ground and had restored it to this position, that at tire time of the accident the defendant’s yardman, who was following the plaintiff when he climbed over the gate, was seen “fumbling” with the rope when the gate fell and that after the accident the rope unbroken was found attached to the gate. It could have been found that the yardman, among other duties, had charge of the gate and knew of its dilapidated condition. Held, that the jury were' warranted in finding that the defendant was negligent in the construction or maintenance of the gate and that the fall of the gate was caused by the negligence of an employee of the defendant acting within the scope of his duty, and accordingly that a motion to order a verdict for the defendant was denied rightly.</p>

Tort for damage caused to a motor car of the plaintiff when it was run into by a team of the city of Newton, the horses of which became frightened by the falling of a boiler belonging to the city that had been hoisted from the wagon and was alleged to have been caused to fall by negligence of employees of the defendant in using a defective chain to hoist it. Writ dated March 10, 1917.

<p>Evidence, Presumptions and burden of proof. Contract, Validity. Bills and Notes. Corporation, Officers, Directors.</p> <p>Where in a bill of exceptions in an action of contract it was stated as a material fact, that the plaintiff was elected president of a Massachusetts business corporation, it was taken, in the absence of any statement to the contrary, that the plaintiff was elected as such president under St. 1903, c. 437, § 18, and therefore that he was elected for the term of one year.</p> <p>In an action of contract on certain promissory notes the defence was set up that the notes were void because given in pursuance of an unlawful agreement. It appeared that the notes were given by the two defendants to the plaintiff in pursuance of a contract in writing between the three, that the three were directors of a business corporation, of which they owned a majority of the stock, that the plaintiff was the president of the corporation and received from the corporation a salary of S150 a week either for his services as president or otherwise, that by the contract the plaintiff agreed to terminate his employment by the corporation on a day named, which was thirteen days from the date of the contract, and it was provided that “Upon said termination [the plaintiff] shall be credited with an amount equivalent to one month’s salary, namely: Six hundred (600) dollars, which shall be applied on account of his indebtedness to said [corporation] for unpaid stock subscription.” This contract was not made nor authorized at a meeting of the directors and was not submitted to the stockholders at a meeting or otherwise. It could have been found that nothing could be due to the plaintiff at the time that he was to terminate his employment. The presiding judge ordered a verdict for the plaintiff. Held, that the ordering of the verdict was wrong and that the case should have been submitted to the jury, who could have found that the contract between the parties was to pay the plaintiff $600 from the funds of the corporation, when nothing was due to him, and to apply this amount on account of his indebtedness “for unpaid stock subscription,” which would make the contract unlawful and void and in violation of St. 1903, c. 437, § 14. -</p> <p>No action can be maintained between the parties to a promissory note which was given pursuant to the provisions of an unlawful contract.</p>

<p>Tort, by the administratrix of the estate of Edward L. Kelley, for his conscious suffering and death alleged to have been caused by negligence of employees of the defendant in running over him with a motor truck on Mystic Avenue in Somerville on November 21, 1916. Writ dated March 5, 1917.</p> <p>In the Superior Court the case was tried before J. F. Brown, J. A verdict was ordered for the defendant on the count for conscious suffering. At the close of the evidence the defendant moved for a verdict on the count for causing death on the ground that on all the evidence the plaintiff was not entitled to recover. The motion was denied. The jury found for the plaintiff on that count in the sum of $6,833. The defendant alleged exceptions.</p>

<p>Equity Jurisdiction, Accounting, To restrain action at law, To avoid circuity of action and multiplicity of suits.</p> <p>A manufacturer, seeking a site for a factory for a corporation which he contemplated organizing, interviewed the board of trade of a municipality in this Commonwealth, a voluntary organization composed of many members,' and the board through its officers agreed with him in writing that they would procure for him and the corporation a building site and would build a factory thereon, for which the corporation should pay sixty per cent in its notes secured by a mortgage and forty per cent in its preferred stock. This agreement afterwards was modified to the effect that the title to the land should be taken by the corporation. The corporation was formed and made an agreement with a building corporation to purchase certain land agreed upon, payments under the agreement to be refunded and all obligations thereunder to cease if the building corporation was unable to pass a good title. Certain members of the board of trade, who also were officers and chief shareholders of the building corporation, knew that the title was defective. The manufacturer, not knowing so, with his corporation went to great expense on the assurance of the board of trade that all would be well. The secretary of the board of trade directed a contractor to go ahead with preparations for the building. The title proved defective and loans upon it could not be placed, and the contract could not be carried out. The building corporation brought three actions at law against the manufacturer and his corporation upon the agreement signed by the two corporations. The contractor threatened suit against the plaintiff and his corporation. The plaintiff and his corporation brought a bill in equity against the members of the board of trade, the building corporation and the contractor, alleging the foregoing facts and seeking a determination of the validity of the contentions of the various parties, accountings between and among all parties, a restraining of the actions at law begun and threatened against the plaintiffs, and discovery of the facts as to the contract between the board of trade and the contractor. Held, that adequate and complete remedies were afforded at 'law, and that there was no jurisdiction in equity upon the facts alleged.</p>

<p>Way, Private. Trespass. Equity Jurisdiction, To enjoin trespass, Mandatory injunction.</p> <p>The owner of the fee of land used as a private way, which he holds under a deed providing that the way is to be forever used as a passageway by him in common " with owners and occupants of the land abutting thereon, may maintain a suit in equity against another owner of land abutting on the way, whose deed provides that he shall have “a free and uninterrupted right, use and privilege in” the way, and who has made an excavation in the way and has constructed a bulkhead there, such acts of the defendant being without excuse; and in such suit a mandatory injunction may be issued directing the defendant to restore the way to the condition in which it was before he committed the trespass.</p> <p>The maintenance of such a suit is not precluded by the mere facts that other abutting owners placed in the way coal holes with covers and gratings for lighting cellars, nor by the fact, if it is a fact, that the defendant had a right to lay water pipes in the way.</p> <p>The owner of an easement in land is entitled to a mandatory injunction compelling the removal of structures that violate his right, although he has suffered , no pecuniary damage.</p>

<p>Negligence, Federal employers’ liability act, Railroad, Proximate cause. Proximate Cause. Evidence, Relevancy and materiality, Statements to Industrial Accident Board, Self-serving statements, Admissions.</p> <p>At the trial of an action against a railroad corporation by the administratrix of the estate of one who was killed while engaged in the performance of his duties as a signal foreman of the defendant’s block signal system, there was evidence tending to show that rules of the defendant required the firemen upon its engines to keep a constant lookout when not firing and to be bn the watch, if the engineman was obliged to look away from the track in front, until he could resume his lookout, to give instant notice to the engineman of any signals or indications of danger or of obstructions and to arrange the work so that fires would not need attention and that no other duties would interfere with their lookout when approaching stations or crossings. It appeared that when killed the plaintiff’s intestate was inspecting a dwarf signal by a track near a station, and that he was struck by a freight train which emerged from under a bridge under which a passenger train had passed leaving a cloud of smoke and steam so dense that one could not see ahead from the freight engine for a distance of twenty feet. The fireman was not in his customary seat keeping a lookout, but was in the gangway</p> <p>between the engine and the tender. Held, that there was no evidence that negligence on the part of the fireman caused the death of the plaintiff’s intestate, since, if he had been on watch he could not have seen the plaintiff’s intestate in time to prevent the accident.</p> <p>For the same reason it was held that there was no evidence that the death of the plaintiff’s intestate was caused by a failure of the head brakeman, who was sitting in the fireman’s seat in the engine, to perform his duties, which were to be looking out ahead and to signal to any one from the engine and “to give a signal to get out of the way, if he saw. any one working on the track that apparently” the train was “getting too close to.”</p> <p>At the trial of the action above described there was evidence upon which the jury were warranted in finding that there was a custom among enginemen of the defendant, if they saw any one on the track, to sound the whistle, or, if the road could not be seen ahead, to “shut off steam and slow down,” and that it was the engineman’s duty to blow the whistle if he saw a man ahead or if he had reason to believe that a man was ahead who did not know of'the train’s approach. There was no evidence that the defendant had promulgated such a rule. Held, that there was no evidence warranting a finding that negligence of the engine-man caused the death of the plaintiff’s intestate.</p> <p>At the same trial a witness testified that when the accident happened the train was late and was running " very much faster” than the witness "ever saw it go before.” Held, that this evidence would not warrant a finding that the train was running at an excessive rate of speed.</p> <p>An engineman of a freight train has a right, in the operation of his engine, to assume that signal men of his employer who are thoroughly familiar with the location' of the tracks and the movements of both freight and passenger trains will take reasonable precautions to ensure their own safety.</p> <p>It appeared that the defendant in the action above described, in accordance with St. 1911, c. 751, Part III, § 18, (as amended by St. 1913, c. 746, § 1,) made a report of the accident in which, on a blank furnished for the purpose, opposite the words “Describe fully how injury occurred,” it stated “While attending to dwarf switches was struck by train and killed.” This statement was introduced in evidence by the plaintiff. The defendant, subject to an exception by the plaintiff, thereupon was permitted to introduce in evidence a statement later filed with the board by the defendant as to the same accident and stating, opposite the same words, “Correct cause of accident is given as follows: Was undoubtedly running for a train and was struck by unknown train on other track.” Held, that both reports properly were treated as one entire report filed in compliance with the statutes and that no error was shown.</p> <p>It also was held that the statement in the second report, quoted above, was not an admission of negligence by the defendant, and was not to be excluded as a self-serving statement.</p>

<p> Municipal Corporations. Mandamus. </p> <p>A vote passed by a town, under authority given by a statute, that “the selectmen ... be and are hereby authorized in the name and on behalf of the town to subscribe for or purchase five hundred (500) shares of the capital stock of [a certain street railway-corporation]] at a price not exceeding the par value thereof,” and that “such subscription or purchase shall not be made by the selectmen until they are satisfied that the balance of the amount necessary for the construction and equipment of said road is fully provided for,” is not of the class of votes giving authority to do an act which are to be construed as directing that the act shall be done, and where the selectmen of the town, acting under this* vote in good faith, after consideration of the situation, were not satisfied that the railway corporation had fully provided for the “balance of the amount necessary” within the terms of the vote, and refused to make the subscription when requested to do so by the railway corporation, the railway corporation cannot maintain a petition for a writ of mandamus to compel the town to make the subscription.</p>

Tort by the administrator of the estate of Daniel J. A’Hern, late of Boston, for conscious suffering of the plaintiff’s' intestate from an injury received on October 21, 1916, and for his death on November 7, 1916. Writ dated December 16, 1916.

<p>Contract by the city of Northampton against the Northampton Street Railway Company, the amended declaration containing five counts, which are described in the opinion. Writ dated July 22, 1915.</p> <p>The defendant demurred to the declaration. The first, second, eighth and ninth causes assigned for demurrer were as follows, the others having been made immaterial by the decision of this court:</p> <p>“1. That the amended declaration does not state a legal cause of action substantially in accordance with the rules contained in R. L. c. 173.</p> <p>“2. That the first, second and third counts of the plaintiff’s amended declaration are founded on franchises and grants of location, and not on contracts made by the defendant.”</p> <p>"8. That the contract set forth in the fourth count of the plaintiff’s amended declaration does not impose upon the defendant any obligation to pay to the plaintiff any portion of the sums expended in repairs on the bridges described in said count.</p> <p>“9. That the fifth count of the plaintiff’s amended declaration sets out no independent cause of action.”</p> <p>In the Superior Court the case was argued on the demurrer before Aiken, C. J., who made an order sustaining the demurrer, and, being of opinion that the questions raised by the demurrer ought to be determined by this court, reported the case for such determination.</p>

<p>Contract, by amendment from an action of tort, by the administrator of the estate of Harry W. Clark, late of the town of Fairhaven, the plaintiff being alleged to have been in his individual capacity dependent upon the earnings of his intestate for support, upon a contract of the defendant to indemnify its employees and the dependents of those killed for injury or death sustained in the course of their employment out of a fund established and maintained by the defendant for that purpose, the plaintiff’s intestate having died as the result of an injury received on.May 7, 1913, when he was in the employ of the defendant. Writ dated May 6, 1914.</p> <p>In the Superior Court the case first was tried before Sander-son, J. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which were sustained by a decision of this court reported in 229 Mass. 1.</p> <p>There was a new trial before Hammond, J., at which the additional evidence was presented that is described in the opinion. At the close of the plaintiff’s evidence the judge, upon a motion of the defendant, ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Invited person, Causing death. Motor Vehicle. Evidence, Of negligence at other times, Competency. Practice, Civil, Exceptions.</p> <p>In an action by a young girl against the owner of a motor car for personal injuries caused by the negligence of the defendant’s chauffeur, which resulted in the overturning of the car when the plaintiff was being transported in it by invitation of the defendant’s daughter authorized by the defendant, where it appears that the plaintiff was a friend of the defendant’s daughter, that, with the de- ' fendant’s permission, she was asked by the daughter to go with her to help her to select a fur coat and that the accident happened when they were returning, the plaintiff has only the right of an invited guest who was travelling gratuitously, and the defendant is not liable at common law for her injuries unless they were caused by the gross negligence of his servant, the chauffeur.</p> <p>In the case above described it also was held that whether the chauffeur was grossly negligent was a question of fact for the jury on the evidence presented and that the presiding judge rightly refused to rule as matter of law that upon all the evidence the plaintiff had established gross negligence on the part of the chauffeur.</p> <p>In the case above described the presiding judge excluded evidence offered by the plaintiff to show, that on the morning of the day of the accident, when the defendant’s wife was using the motor car, the-chauffeur drove fast, the plaintiff contending that this tended to show reckless habits of the chauffeur which were known or ought to have been known to the defendant, and it was held that the evidence was excluded properly.</p> <p>In the same case a witness, who accompanied by his housekeeper was passing over the road in a touring car and saw the accident, was asked by the plaintiff, whether “he saw his housekeeper do anything when she saw” the defendant’s car. The judge excluded the question, subject to the plaintiff’s exception,,.but there was nothing in the bill of exceptions to show what answer was expected from the witness. It was held that, for this reason alone, no exception to-ithe exclusion of the unknown answer could be sustained, and it also was said, that, even if the answer would have been that the housekeeper exhibited signs of fright, which the jury could have inferred were caused by what she had seen, this evidence would have been incompetent to show negligence on the part of the chauffeur.</p> <p>In an action by an administrator under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for causing the death of the plaintiff’s intestate when she was travelling as an invited guest in the defendant’s motor car, which was overturned by reason of the negligent driving of the defendant’s chauffeur, it is right for the presiding judge to refuse to rule that the plaintiff cannot recover unless gross negligence of the chauffeur is shown, because the statute by its terms provides for recovery on proof of only ordinary negligence. /</p>

<p>Contract, with a declaration in two counts, the first count being upon a contract for the installation by the plaintiff for $218 of a system of irrigation upon the premises of the defendant. The second count was upon an account ^annexed for the same installation. Writ in the Municipal Court of the City of Boston dated November 13, 1915.</p> <p>The pleadings and the facts found by the judge of the Municipal Court are described in the opinion. The judge also found “that on Monday, June 28, 1915, the plaintiff’s representative wrote the defendant a letter setting forth in detail the terms upon which the plaintiff offered to install its irrigation plant on the defendant’s farm, and that thereafter the plaintiff proceeded to install said plant on said farm with the knowledge of the defendant," all the work of installation being done on secular days.” The judge found for the plaintiff and at the request of the defendant reported the case to the Appellate Division, who dismissed the report. The defendant appealed.</p>

<p>Tokt for the conversion of a boat. Writ in the Municipal Court of the City of Boston dated February 8,1915.</p> <p>The pleadings, the evidence and the rulings of the trial judge objected to by the defendant are described in the opinion. The judge found for the plaintiff and at the request of the defendant reported the case to the Appellate Division, who dismissed the report. The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort for deceit, as described in the opinion. Writ dated August 21, 1916.</p> <p>In the Superior Court the action was tried before McLaughlin, J. Material evidence is described in the opinion. At the close of the evidence, on motion of the defendant, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on April 11, 1918, to reach and apply under the provisions of R. L. c. 159, § 3, cl. 8, certain real estate alleged to have been conveyed fraudulently by the defendant Abraham Gersinovitch to the defendants Rosie A. and Myer H. Gersinovitch with intent to defeat, delay and defraud the creditors of Abraham.</p> <p>The allegations of the bill are described in the opinion. The defendants demurred. The demurrers were heard by Wait, J., and a decree was entered sustaining them and dismissing the bill. The plaintiff appealed.</p>

Three actions of tort for personal injuries alleged to have resulted from illuminating gas caused, by negligence of employees of the defendant, to escape upon premises occupied by the plaintiffs. Writs dated May 8, 1915. ' <> The actions were tried together in the Superior Court before Keating, J. The evidence is described in the opinion. At the close of the evidence the judge denied motions of the defendant that verdicts be ordered for it.

<p>Contract on an alleged agreement in writing, described in the opinion, to pay the plaintiff a balance of $135 remaining unpaid on a promissory note of the Hub Curtain Company for $150. Writ in the District Court of Southern Essex dated January 23, 1915.</p> <p>On appeal to the Superior Court the case was tried before Sanderson, J. The facts favorable to the plaintiff which could have been found upon the evidence are stated in the opinion. At the close of the- evidence the defendant asked the judge to make the following rulings:</p> <p>“1. A verdict for the defendant should be directed by the court.</p> <p>“2. The plaintiff’s action is prematurely brought.</p> <p>“3. If the plaintiff ever lent the defendant $150, then said debt was paid by a note of the Hub Curtain Company.</p> <p>“4. The allegations set forth in the plaintiff’s declaration constitute a fraud and the plaintiff cannot recover on the agreement set forth in the second paragraph of his declaration.</p> <p>"5. If the jury find that the plaintiff agreed with the defendant to prove in bankruptcy a claim against the Hub Curtain Company which was not a valid claim, he cannot recover in this-action.</p> <p>“6. The plaintiff cannot recover for money alleged to have-been lent to the defendant on or about October 21, 1910.</p> <p>“7. If a note was executed by the defendant to the plaintiff on. or about October 21, 1910, and this note was surrendered by the-plaintiff for a note of the Hub Curtain Company, then this alleged note of the defendant given on or about October 21, 1910, was. paid.</p> <p>“8. The plaintiff, having elected to prove his claim in bankrup'tcy against the Hub Curtain Company, cannot press his claim against the defendant.</p> <p>“9. In the absence of evidence that the plaintiff will receive no more dividends from the Hub Curtain Company’s bankrupt estate, he cannot recover on the alleged agreement set forth in the second paragraph of his declaration.”</p> <p>The judge refused to make any of these rulings. In regard to the seventh ruling requested by the defendant the judge instructed the jury as follows: “The claim is that the corporation bought up the old note and the old note was surrendered for the purpose — one purpose, at any rate — of having the substituted note proved, in bankruptcy to get a dividend, with the collateral agreement on. the part of this defendant that he personally would pay any difference between the amount of the dividend and the amount due on the note. If there was such a purchase and it was a genuine transaction, a real transaction such as might take place where one man buys up a note, or buys it by giving another note for it, then from that time on the debt would be the debt of the Hub Curtain Company and not the personal debt of the defendant; and from that time on the only possible reliance the plaintiff could have on the defendant would be by reason of an agreement to pay a balance, and that would have to be based upon a consideration, and a legal consideration.” The defendant excepted to this portion of the charge.</p> <p>The judge submitted to the jury seven special questions,, which, with the answers of the jury, were as follows:</p> <p>“ 1. Did the defendant Parrott at any time execute and deliver to the plaintiff his personal note for the money advanced by the plaintiff for the Hub Curtain Company?” The jury answered, “Yes.”</p> <p>“2. Was the note in evidence given as a substitute for and in settlement of a note previously held by the plaintiff? ” The jury-answered, “Yes.”</p> <p>“3. Did the Hub Curtain Company owe the plaintiff the amount of the claim which he proved against it in the bankruptcy case? ” The jury returned no answer.</p> <p>“4. Did the defendant Aldine O. Parrott on or about February 24,. 1911, promise the plaintiff to pay a debt due him from the Huh Curtain Company?” The jury answered, “Yes.”</p> <p>“5. If such a promise was made, was it in writing?” The jury-answered, “Yes.”</p> <p>“6. If such promise was made, was there a consideration for it?” The jury answered, “Yes.”</p> <p>“7. Were the bankruptcy proceedings in the case of the Hub Curtain Company closed at the time this case was brought? ” The jury answered, “Yes.”</p> <p>The jury returned a general verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Negligence, Contributory.</p> <p>A woman, who, before the enactment of St. 1914, c. 553, walked slowly across a street railway track in front of a moving street railway car that she had seen forty feet away and which she could have seen was very near her before she walked in front of it, and was injured by being knocked down .by the car, cannot maintain an action against the corporation operating the car for her injuries.</p>

<p>Name. Partnership. Equity Jurisdiction, To enjoin use of name of deceased partner, Laches. Limitations, Statute of. Executor and Administrator.</p> <p>St. 1853, e. 156, now in substance It. L. c. 72, § 5, which provides that, “A person who carries on business in this Commonwealth shall not assume or continue to use in his business the name of a person formerly connected with him in partnership or the name of any other person, either alone or in connection with his own or with any other name or designation, without the consent in writing of such person or of his legal representatives,” gives a right to the executor or administrator of the estate of a deceased partner which before the passage of the statute was unknown to the common law or in equity, and under the next section of this statute the executor or administrator of the estate of a deceased partner can maintain a suit in equity to enjoin a surviving partner from continuing to use the name of the testator or intestate in his business.</p> <p>Such a suit in equity may be brought at any time while such use of the testator’s or intestate’s name continues, and while such use continues neither the statute of limitations nor loches is applicable as a defence to such a suit. Following Bowman v. Floyd, 3 Allen, 76.</p> <p>By the statute named above the right to maintain a suit in equity to enjoin the continuance of the use of the name of a deceased partner is^given only to “his legal representatives,” and former partners of a firm that used the name of the deceased after his death cannot maintain such a suit.</p>

<p> Devise and Legacy. Power. Charity. </p> <p>A testator by his will disposed of the residue of his estate as follows: “The remainder of my Property both real and personal I give in Trust to my wife FEC&MECtobe used by them if their real wants are not supplied from any failure of income from their own property to give them' a generous support or L M C or any other near relative the interest on the same to be used as it is needed for such purposes. My will & wish is that my wife, daughter & L M C have every needed want supplied & to this end they may use this trust so far as it is necessary if their own property does not supply all their wants & any & all interest left after paying any such extra wants it is my will & shall be devoted to Missions & like good objects as they may think best 8s the principal shall go finally to the same or similar objects as my wife 8s daughter may decide knowing as they do my purpose.” PEC, the testator’s widow, waived the provisions for her benefit in his will, and continued to live. M E C, the testator’s daughter, died, without having made any appointment under the above residuary clause. L M C also died. On a bill for instructions by the trustees under such residuary clause, it was held, that a valid trust for charitable purposes was created in so much of the residue of the testator’s property as had not been required for the support of the individual beneficiaries, that the power of appointment to designate the charities vested in {he testator’s widow and his daughter and could be exercised by the widow as the survivor of them and that the trustees should be ordered to distribute and pay over the residue to such charitable organizations as the widow as such survivor of the donees of the power should appoint. ,</p> <p>In the suit described above it appeared that, before the filing of the bill, the widow had made an attempted execution of the power by deed, but in such attempt had provided for a payment for the benefit of a private trust and also had provided that the instrument of appointment should become operative only when a ratification of it by a decree of the Probate Court should become absolute, and it was held that the attempted appointment to the private trust was void, but that this instrument did not prevent a new appointment by the widow in conformity with the terms of the power.</p>

<p>Negligence, Contributory negligence, Invited person.' Evidence, Presumptions and burden of proof.</p> <p>Where, at the trial of an action for personal injuries suffered by the plaintiff after the enactment of St. 1914, c. 553, due to a fall in a building under the defendant’s control in which the plaintiff was at the defendant’s invitation, the only evidence shows that the premises were strange to the plaintiff and were very dark, that he knew and appreciated the degree of darkness, was in no way misled by any act or omission of the defendant and had no false sense of safety, but went ahead nevertheless and fell down steps which he did not see, a verdict must be ordered for the defendant, because the only reasonable inference to be drawn from the evidence is that negligence of the plaintiff contributed to his injury.</p>

<p>Constitutional Law, Secrecy of grand jury proceedings. Jury and Jurors. Practice, Criminal, Grand jury proceedings. Witness.</p> <p>An indictment found and returned by a grand jury upon testimony given before them by witnesses in the presence of other witnesses is a violation of art. 12 of the Declaration of Rights, although no person not a member of the grand jury was present while that body was deliberating upon the evidence presented.</p> <p>A plea in abatement to an indictment for crime on the ground that, while the grand jury were hearing testimony upon the subject matter of the indictment, other witnesses than the witness testifying were preseht in the grand jury room, must be sustained although it appears that such witnesses were present solely for the purpose of testifying and it is not shown that the defendant suffered any harm from their presence.</p>

<p>Bailment, Gratuitous. Sale, Return of goods. Negligence, Gross, Of bailee. Evidence, Presumptions and burden of proof.</p> <p>A purchaser, who, upon examining goods shipped to him to fulfil a contract of sale by sample, discovers that the goods do not conform to the sample and reships them to the seller, in doing so is a gratuitous bailee of the goods.</p> <p>A gratuitous bailee is liable to his bailor only for damages caused by bad faith or gross negligence for which he is responsible.</p> <p>Statement by Rugg, C. J., of the rules in regard to negligence, gross negligence and wilful, wanton and reckless conduct.</p> <p>Where the evidence at the trial of an action makes the rules distinguishing negligence from gross negligence applicable, a party requesting rulings as to such distinction has a right to have adequate instructions given to the jury on that subject.</p> <p>At the trial of an action by a bailor against a gratuitous bailee for damages resulting from the fact that the defendant in shipping the bailed goods by express to the plaintiff stated to the express coiflpany as their value $50 when the goods were worth over $280, whereby, upon the goods being lost by the express company, the plaintiff was able to collect from it only $50 instead of the value of the goods, the judge correctly instructed the jury that the defendant’s duty was to act in good faith, and that the degree of care which he was bound to exercise was measured by the carefulness which he used toward his own property of a similar kind under like circumstances. Subject to exceptions by the defendant, he further instructed the jury that, “in determining the question that is presented here, it would be necessary to ask the question whether the defendant, in dealing with the property of the plaintiff, did deal with it with the same degree of carefulness which any person would use toward his own property of similar kind, under like circumstances,” and, continuing, stated as the standard for the jury’s guidance, the conduct of an “ordinarily prudent man . . . under like circumstances.” Held, that this rule last laid down would impose upon the defendant liability for simple negligence when he was liable only for bad faith or gross negligence, and was erroneous.</p> <p>At the trial above described, the only evidence of the standard of care exercised by the defendant toward his own goods of similar character was from.one of his own employees and tended to show the same degree of care as that shown as to the'bailed goods. Held, that, since the jury might disbelieve this testimony, they, having no other evidence on the subject, might be unable to find bad faith on the part of the defendant and would need some guide as to what rule they should follow; and that the judge’s instruction, giving the rule as to ordinary negligence, which then would be their only guide, therefore was prejudicial to the defendant.</p> <p>It also was said that on the evidence set out above, -with the testimony of the defendant’s employee disbelieved, a finding was warranted that the defendant was grossly negligent in reshipping the silk to the plaintiff with a valuation of not more than $50, when its value was more than $280.</p>

<p>Bankruptcy, Preference. Equity Pleading and Practice, Appeal.</p> <p>At the hearing of a suit in equity by a trustee in bankruptcy against a bank and its vice president, seeking a conveyance to the plaintiff of certain real estate conveyed by the bankrupt within four months of his adjudication to the defendant vice president for the bank’s benefit, the plaintiff alleging that at the time of the conveyance the bankrupt was insolvent, that the bank and the vice president had reason to believe that he was so and that the conveyance was intended to and did enable the bank to obtain a greater percentage of its debt than did other creditors of the bankrupt of the same class, there was evidence tending to show that for eleven years previous to 1914 the bankrupt borrowed from the bank and each year paid his indebtedness; that at the beginning of 1914 he owed the bank $2,700 and at the end $9,000, the only payment he made1 during that year being $1,000 in April; that from April, 1914, to February, 1915, there were thirty renewals of his notes at the bank and that Ms credit balance there was small. There also was evidence showing that the officers thought that the bankrupt^ was deceiving them and knew that he owed another bank $8,000; that at the time of the conveyance the bankrupt was insolvent, that the vice president did not know of the conveyance until informed later by the president, and that the debts owed other creditors amounted to about $35,000. There also was evidence tending to show it was agreed that when the bank’s loans were paid the property was to be returned to the bankrupt. The judge made findings for the plaintiff and .a final decree was entered accordingly, from wMch the defendants appealed. Held, that the findings were warranted by the evidence.</p>

<p>Two complaints under R. L. c. 76, § 8, received and sworn to in the Municipal Court of the City of Boston on February 18 and August 3, 1915, the first charging the defendant with practising medicine on November 18,1914, and on divers other days between that date and February 18, 1915, not being authorized to do so and not being registered with the board of registration in medicine of the Commonwealth according to law, and the second charging the defendant with holding himself out as a practitioner of medicine between March 3, 1915, and August 3, 1915, without being lawfully authorized to practise medicine within the Commonwealth and without being registered as required by law.</p> <p>In the Superior Court the defendant was tried on both complaints before Rana, J. The material evidence is described in the opinion. The defendant made a motion upon each of the complaints that the judge should instruct the jury upon all the evidence to return a verdict of not guilty. The judge denied both of these motions, and he also refused to make certain rulings requested by the defendant. The material portion of the judge’s charge is described and quoted in the opinion.</p> <p>“The defendant excepted to that portion of the judge’s charge upon the second complaint which instructed the jury to consider and apply evidence outside of the dates alleged in that complaint for the purpose stated by the” judge. He also “excepted to that portion of the judge’s charge which referred to the manner of disposing' of a case.”</p> <p>The jury returned a verdict of guilty on each of the complaints; and the defendant alleged exceptions.</p> <p>The appeal referred to in the opinion was taken in each case by the defendant from an order of the judge denying a motion to quash the complaint.</p>

<p>The following order was passed by the Senate onMarch 12,1919, and was transmitted to the Justices of the Supreme Judicial Court. On April 2, 1919, the Justices returned the answer which is subjoined.</p> <p>Whereas, there is now pending in the General Court a bill numbered Senate 54, entitled “An Act establishing a five cent fare on the lines of the Boston Elevated Railway Company and subsidizing the company from the public treasury for any resulting deficiency,” a copy of which is herewith submitted; and</p> <p>Whereas, said bill makes reference to chapter 159 of the Special Acts of the year 1918, and proceeds upon the assumption that said chapter 159 is constitutional and wholly operative, the stockholders of the Boston Elevated Railway Company and the West End Street Railway Company having duly accepted the provisions of said chapter 159, and all the conditions prescribed therein having been performed, which under its terms are necessary in order to render it fully effective; and -1</p> <p>Whereas, there is also now pending in the General Court a bill numbered House 722, entitled “An Act to provide for the assumption of subway rentals by the communities served by the Boston Elevated Railway Company,” a copy of which is herewith submitted, and which also refers to said chapter 159, and likewise proceeds upon the assumption that said chapter 159 is constitutional and wholly operative; and</p> <p>Whereas, there are other bills pending before the General Court, — to. wit: — Senate bills numbered 52 and 287, and House bills numbered 721, 1351 and 1352, — copies of which are hereto annexed, which cannot be intelligently acted upon unless the General Court is authoritatively advised relative to the constitutionality of said chapter 159; therefore be it</p> <p>Ordered, That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court upon the following important questions of law:</p> <p>(1) Would said Senate Bill No. 54 be constitutional if enacted?</p> <p>(2) Would said House Bill No. 722 be constitutional if enacted?</p> <p>(3) Is the whole or any part of said chapter 159 unconstitutional?</p> <p>(4) Is any part, or are any parts, of said chapter 159 which have a direct relation to the validity of said Senate Bill No. 54 or said</p> <p>House Bill No. 722, unconstitutional?</p> <p>Senate Bill No. 54, referred to above, was as follows;</p> <p>An Act establishing a Five Cent Fare on the lines of the Boston Elevated Railway Company and subsidizing the Company from the Public Treasury for any Resulting Deficiency.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:</p> <p>Section 1. The rate of fare for each single passage over the lines of the Boston Elevated Railway Company that may be fixed by the board of trustees of said company, acting under chapter one hundred and fifty-nine of the Special Acts of nineteen hundred and eighteen, shall not exceed the sum of five cents, and the distance that may be travelled for the sum of five cents shall in no case be less than as established on the day nineteen hundred and eighteen.</p> <p>• Section 2. If the rate of fare chargeable under the provisions of section one is inadequate to meet the cost of the service, less all the items to be deducted as provided jn section six of said chapter one hundred and fifty-nine, including dividends as therein specified, the reserve fund established under section five of said chapter one hundred and fifty-nine, shall be used to make up the deficiency as provided in section nine of said chapter one hundred and fifty-nine.</p> <p>Section 3. If at any time said reserved fund be less than seventy per cent of its amount as originally established, the trustees shall thereupon give notice to the Treasurer and Receiver General, and the Commonwealth shall thereupon pay over to the company such amount as may be necessary to restore'said fund to an amount equal to said seventy per cent. In order to meet any payment required under this section, the Treasurer and Receiver General may borrow at any time, in anticipation of the assessments to be levied upon the cities and towns, as provided in the following section, such sums of money as may be necessary to make said payment.</p> <p>Section 4. All sums advanced to the company under the provisions of the preceding section shall be assessed upon the cities and towns in which the company operates in the manner provided by section fourteen of said chapter one hundred and fifty-nine.</p> <p>Section 5. So much of said chapter one hundred and fifty-nine as is inconsistent herewith is hereby repealed.</p> <p>Section 6. This act shall not take effect unless it is accepted by the holders of not less than a majority of all the stock of the Boston Elevated Railway Company, not including the preferred stock issued under section five of said chapter one hundred and fifty-nine, and by the holders of not less than a majority of all the stock of the West End Street Railway Company, given at meetings called for the purpose, and the filing with the secretary of a certificate to that effect signed by a majority of the directors of thé Boston Elevated Railway Compány. / ,</p> <p>House Bill No. 722, referred to above, was as follows:</p> <p>An Act to provide for the Assumption of Subway Rentals by the Communities served by the Boston Elevated Railway Company.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled,'and by the authority of the same, as-follows:</p> <p>In order to decrease the rates of fares which would otherwise be necessary to meet the cost of service upon the Boston Elevated Railway, the board of trustees of the Boston Elevated Railway Company are hereby directed quarterly on the first of January, April, July and October to certify to the Treasurer and Receiver General the amount paid during the preceding quarter for rentals of subways or other property owned by the Commonwealth, or any city, town, or other subdivision thereof and leased to said company, and the Commonwealth shall thereupon pay over to the company the amount so certified. In order to meet said payments the Treasurer and Receiver General shall borrow any. sums necessary therefor, and thereafter repay the same, and any sums so paid to the company together with interest or other charges incurred in borrowing money therefor shall be assessed upon the cities and towns in which the company is operated, in the manner provided by chapter one hundred and fifty-nine of the Special Acts of the year nineteen hundred and eighteen with reference to deficiencies in the reserve fund thereby established.</p>