Volume 232 — Massachusetts Reports

<p>Contract, for $160 alleged to be due to the plaintiff under a contract in writing by which the plaintiff agreed for one year from April 9, 1917, “to devote his entire time, energy and skill to the selling of the products of” the defendant “in the various forms as manufactured and quarried by them, especially cemetery work in all its details,” alleging that the plaintiff at all times was ready and willing to perform his part of the contract but was prevented from doing so by the defendant, its agents and servants. Writ in the Municipal Court of the City of Boston dated May 8, 1917.</p> <p>The answer of the defendant, as substituted by amendment, is described in the opinion. Two other similar actions for breaches of the same contract but covering different periods were tried at the same time with this action.</p> <p>The report of the trial by the judge of the Municipal Court to the Appellate Division is described and quoted in the opinion. The judge refused to rule at the request of the defendant that on all the evidence the plaintiff was not entitled to recover, and in this action, as well as in the other two actions, found for the plaintiff in the amount claimed by him. At the request of the defendant the judge reported the case to the Appellate Division, who made an order that the report be dismissed. The defendant appealed.</p>

<p>Two petitions, filed in the Land Court respectively on January 2 and January 11, 1917, for the registration of the title to two parcels of land in Gloucester. The petitioner claimed a title in fee by reason of provisions in the wills of her husband, Francis W. Homans, and of his first wife, Rebecca E. Homans, described in the opinion.</p> <p>The cases were heard together by Corbett, J. The petitioner offered in evidence testimony of C. B. Terry, Esquire, that he knew Francis W. Homans in his lifetime; that he was consulted professionally by Homans after the death of his wife, Rebecca E., concerning the provisions of her will; that Homans in these consultations was angry and nervous about the way the will was drawn and over the difficulty he might have in disposing of the property described in these petitions; that at a subsequent similar conference Homans informed the witness that in the meantime he had consulted F. P. Cabot, Esquire, on the same subject matter, and that Homans was relieved of anxiety and was pleased after that conference with Mr. Cabot. This evidence was admitted de bene, and ultimately was ruled out by the judge as immaterial, subject to an exception by the petitioner. The petitioner also offered to prove by the witness Terry that as a part of the last mentioned conversation Francis W. Homans said to him that Mr. Cabot had stated to him (Homans) that he (Homans) did have the right to dispose by will of the property in question. This testimony was excluded subject to an exception by the petitioner.</p> <p>In each case the judge ruled that the petitioner did not take title to the premises, and that the petitions should be dismissed; and the petitioner alleged exceptions.</p>

<p>Petition, filed in the Supreme Judicial Court on November 12, 1917, under St. 1909, c. 490, Part III, § 70, by the International Paper Company, a corporation organized under the laws of the State of New York, to recover $5,500 as the amount of an excise paid by the petitioner to the Commonwealth on May 21, 1917, and alleged to have been exacted unlawfully.</p> <p>An order of notice to be served on the Treasurer and Receiver General and the Attorney General was issued on the date of the filing of the petition, but it appears never to have been served.</p> <p>More than four months later, on March 14, 1918, another order of notice was issued, which was served upon the Treasurer and Receiver General and upon the Attorney General on April 4,1918.</p> <p>On May 22, 1918, the Attorney General in behalf of the Commonwealth filed a motion to dismiss the petition upon the following grounds:</p> <p>“1. The petition is not an application for the abatement of the tax described therein duly made within the time and in accordance with the conditions set forth in St. 1909, c. 490, Part III, §70.</p> <p>“2. The petition is not brought within six months of the payment of the tax as required by St. 1909, c. 490, Part III, § 70.</p> <p>“3. No service of the original order of notice issued on the filing of the petition was ever made upon the respondent as required by St. 1909, c. 490, Part III, .§ 70.</p> <p>“4. The service of an order of notice issued upon this petition long after the filing thereof and more than six months after the payment of the tax is not a compliance with the conditions imposed by St. 1909, c. 490, Part III, § 70.”</p> <p>The case was heard by Crosby, J., upon the petition and the respondent’s motion to dismiss. It was admitted by the counsel for the respondent that the motion to dismiss was based exclusively upon the Commonwealth’s contention as to the proper construction of St. 1909, c. 490, Part III, § 70. •</p> <p>The petitioner introduced the testimony of the assistant clerk of the Supreme Judicial Court as to the long continued practice in equity in that Court to the effect that alias orders of notice and subpoenas are issued upon the request of the plaintiff at any time, whenever the original order of notice or subpoena has not been served; also the existing and former rules in equity of the Supreme Court of the United States to the same effect.</p> <p>The single justice reported and reserved the motion to dismiss for determination by the full court. If the motion should be denied, a decree was to be entered for the petitioner to recover the tax, with interest and costs, as prayed for in the petition. If the motion should be granted, a decree was to' be entered dismissing the petition.</p> <p>St. 1909, c. 490, Part III, § 70, is as follows: “Any corporation or association aggrieved by the exaction of said tax or excise or of any portion thereof may, within six months after the payment of the same, whether such payment be after or before the issue of the warrant mentioned in the preceding section, apply by petition to the Supreme Judicial Court, setting forth the amount of the tax or excise and costs thereon so paid, the general legal grounds and the specific grounds in fact, if any, upon which it is claimed such tax or excise should not have been exacted. Said petition shall be the exclusive remedy and shall be entered and heard in the county of Suffolk. A copy of the same shall be served upon the Treasurer and Receiver General and upon the Attorney General. The proceedings upon such petition shall conform, as nearly as may be, to proceedings in equity, and an abatement shall be made of only such portion of the tax or excise as was assessed without authority of law. In case said tax or excise has heretofore been exacted or is hereafter exacted in consequence of any law or statute of any other State of the United States, then the application above provided for may be made at any time within six years after the exaction of said tax or excise or any portion thereof.”</p>

Petition, filed in the Supreme Judicial Court on October 22, 1917, under St. 1909, c. 490, Part III, § 70, by a corporation organized under the laws of the State of West Virginia, to re- . cover the amount of an excise paid by the petitioner on April 25, 1917, and alleged to have been exacted unlawfully.

<p>Tax, Validity. Corporation, Foreign, Taxation. Constitutional Law, Interstate commerce.</p> <p>By the decisions of the Supreme Court of the United States in International Paper Co. v. Massachusetts, 246 U. S. 135, and in Locomobile Co. of America v. Massachusetts, 246 U. S. 146, reversing the decision of this court in 228 Mass. 117, it is established that St. 1914, c. 724, imposing an additional excise on the authorized capital stock of foreign corporations doing business here, was, until it was repealed by St. 1918, c. 76, an integral part of St. 1909, c. 490, Part III, § 56, and that the excise attempted to be imposed by the statute thus changed was void as to corporations engaged in interstate commerce, being as to such corporations in violation of the Constitution of the United States. Accordingly an excise attempted to be exacted while St. 1914, c. 724, was in force from a foreign corporation with an authorized capital stock of $5,500,000 is void, although such an excise could have been imposed lawfully under St. 1909, c. 490, Part III, § 56, standing alone.</p>

<p>Tax, Remedy for unlawful exaction, Validity, Filing fee. Words, “Fee,” “Costs.”</p> <p>The permission given by St. 1909, c. 490, Part III, § 70, to sue the Commonwealth in its own courts to recover the amount of a tax or excise exacted unlawfully, is limited to cases where the petition was brought within six months after the •payment of such tax or excise. Affirming. International Paper Co. v. Commonwealth, ante, 7.</p> <p>The condition of jurisdiction mentioned above, which also constitutes a statute of limitation, is reasonable in regard to the length of the period of limitation.</p> <p>.An excise exacted from a foreign corporation, which was assessed and paid while St. 1909, c. 490, Part III, § 56, and St. 1914, c. 724, both were in force and before 'the last named statute had been repealed by St. 1918, c. 76, was exacted unlawfully and the amount thus paid can be recovered from the Commonwealth by a petition under St. 1909, c. 490, Part III, § 70. Following Liquid Carbonic Co. v. Commonwealth, ante, 19.</p> <p>The fee of $5 required from a foreign corporation doing business here under St. 1903, c. 437, § 91, for filing the annual certificate of condition required by St. 1909, c. 490, Part III, § 54, is no larger in amount than may be regarded as necessary to cover the expenses of maintaining and caring for records and is a reasonable requirement.</p> <p>The fee for filing named above is not a tax nor an excise and, if exacted unlawfully, no remedy for recovering the amount of it is given by St. 1909, c. 490, Part III, § 70. Nor is it included in the word “costs” as used in that section.</p>

<p>Petition, filed in the Supreme Judicial Court on April 10,. 1918, under St. 1909, c. 490, Part III, § 70, by a corporation organized under the laws of the State of Rhode Island and engaged in both interstate and intrastate business in Rhode Island and in Massachusetts, to recover excises for the years 1914, 1915, 1916 and 1917, paid by the petitioner respectively on February 10, 1915, February 25, 1916, February 28, 1917 and March 19, 1918, and alleged to have been exacted unlawfully.</p> <p>The Commonwealth demurred to the petition and assigned the following grounds for demurrer:</p> <p>“1. So far as said petition relates to taxes paid by the petitioner on February 10, 1915, February 25, 1916, and February 28, 1917, it is not brought ‘within six months after the payment of the same,’ as required by St. 1909, c. 490, Part III, § 70.</p> <p>“2. No tax described in the petition was exacted without authority of law.</p> <p>“3. The tax paid on March 19, 1918, was in no way invalidated or affected by St. 1914, c. 724, that statute having been repealed by St. 1918, c. 76, which became effective on March 18, 1918.</p> <p>“4. The filing fees paid by the petitioner can in no event be recovered in this proceeding.”</p> <p>The case came on to be heard on the demurrer by Carroll, J., who, by agreement of -the parties, reserved it upon the petition and the demurrer for determination by the full court. At the argument before this court Mr. Richardson, the counsel for the' petitioner, agreed in open court that the record should be construed as meaning that the tax for the year 1917 was assessed and levied on the day when it was paid, namely, on March 19, 1918. This agreement as to the interpretation of the record and the fact was assented to by Mr. Hitchcock, Assistant Attorney General.</p>

<p>Limitations, Statute of. Corporation, Validity of indorsement upon certificate of stock. Contract, What constitutes.</p> <p>When a purchaser of .shares of stock of a corporation presents to the corporation an order for the transfer of the shares purporting to be signed by the owner of the shares, accompanied by a certificate representing them, and demands a new certificate in exchange, he impliedly represents that the signature is valid.</p> <p>If, upon the presentation of such an order and certificate, the corporation issues a new certificate as requested and, it afterwards appearing that the signature to the order was forged, is required to respond in damages to the owner of the shares, it has a right of action for breach of the warranty against the alleged purchaser to whom it issued the new certificate, although the alleged purchaser acted in good faith throughout the transaction.</p> <p>The warranty above described is broken upon the issue by the corporation of the new certificate in reliance upon it, and any .action founded upon such breach must be brought within six years thereafter or it is barred by R. L. c. 202, § 2.</p> <p>The presentation of such an order for transfer accompanied by the certificate representing the shares, upon which a new certificate is issued to the alleged purchaser, does not constitute a contract by the alleged purchaser to indemnify the corporation against loss or damage which it shall suffer in case the signature to the order is not genuine, which would not be broken until the loss or damage is suffered.</p>

Bill in equity, filed in the Superior Court on December 21, 1917, to restrain the defendant from enforcing an assignment of wages given by the plaintiff to the defendant as security, to compel a surrender of the assignment and for other relief. In the Superior Court the suit was heard by Fox, J., upon an agreed statement of facts and by him was reported to this court for determination. The case was submitted on briefs.

<p>Contract upon a poor debtor recognizance. Writ in the Police Court of Somerville dated April 7, 1917.</p> <p>On appeal to the Superior Court the case was heard hj Morton, J., without a jury. He made the following finding of facts:</p> <p>. “The debtor appeared by counsel within the thirty days prescribed by law. He was sworn and examined by the plaintiff’s counsel and the examination was continued from time to time until May. It had been a common practice, known to the plaintiff’s attorney, for a debtor to appear by counsel and not personally. Neither of the defendant’s counsel nor the debtor nor his counsel had any reason to believe that the practice was illegal, except so far as they were presumptively charged with knowledge of the law, until the decision in |~Howard v. Roach] 226 Mass. 80 was published. The plaintiff’s counsel thereupon at once examined the papers and found that the debtor had not appeared personally. This was the first knowledge he had of the fact. He at once ceased taking part in further poor debtor proceedings.</p> <p>" Upon these facts I find and rule that there was no waiver of the breach and that the .plaintiff was not estopped from suing the surety for the breach. I find for the plaintiff in the sum of $795.38.”</p> <p>The defendant alleged exceptions.</p> <p>R.L. c. 168, § 30, reads as follows: “Section 30. When taken before the magistrate, the defendant or debtor may recognize with surety or sureties in a sum not less than the amount of the execution, or of the ad damnum in the writ if he is arrested on mesne process, that within thirty days from the day of his arrest he will deliver himself up for examination before a police, district, or municipal court, or a trial justice, giving notice of the time and place thereof as herein provided, and appear at the time fixed for his examination and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon; but if he is arrested on mesne process and the writ is returnable within thirty days, the number of days within which he shall deliver himself up shall be limited by the magistrate so as to extend beyond the return day of the writ.”</p>

<p>Appeal to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding compensation to John Lawrence Hallett as the dependent husband of Gertrude O. Hallett, who died on August 18, 1917, by reason of falling at the top of a flight of granite steps serving as the entrance of the store where she was employed as bookkeeper by the S. K. Dexter Company, a corporation carrying on the business of a wholesale grocer at Lowell.</p> <p>In the Superior Court the case first was heard by Wait, J., who made a decree in accordance with the decision of the Industrial Accident Board. The insurer appealed to this court, who, by a decision reported in 230 Mass. 326, ordered that the case be recommitted to the Industrial Accident Board to find the cause of Mrs. Hallett’s fall.</p> <p>The case was recommitted as ordered. The Industrial Accident Board made the findings of fact which are stated and described in the opinion and found that the injury and death of the employee arose out of and in the course of her employment, and that the claimant, the husband of the deceased employee, being conclusively presumed under the statute to have been wholly dependent upon her for support, was entitled to a weekly compensation of $8.67 for a period of five hundred weeks from August 18, 1917, the date of the injury, such sum, however, not to exceed $4,000. The insurer appealed to the Superior Court, where the case was heard on the new report of the Industrial Accident Board by J. F. Brown, J. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p>

<p>Contract upon an account annexed of fifty-five items for goods sold to the defendant by Robert Rosenfeld of New York, the account having been assigned by Rosenfeld to the plaintiff, a corporation, a “commercial banker” in New York, whose' business consisted in the purchase from manufacturers of open accounts arising from the sale of merchandise .on credit. Writ dated October 6, 1910.</p> <p>The items described in the account annexed included goods shipped to the- defendant by Rosenfeld on October 11, 1909, amounting to $16.50; goods shipped on November 11, 1909, amounting to $33.00; on November 12, 1909, amounting to $247.50; on November 13, 1909, amounting to $132.00; on November 14, 1909, amounting to $412.50; on November 17, 1909, amounting to $336.00. The entire account amounted to $l,17t.50.</p> <p>The defendant filed a declaration in set-off for goods which it had purchased from Rosenfeld in September, 1909, had paid for, and had returned to him on October 5 and 19 in accordance with an agreement made at the time of the sale.</p> <p>The case was heard by Hitchcock, J., without a jury. There was evidence tending to show that each account receivable arising from each sale above described, including those in September, was assigned to the pMntiff and notice given to the defendant within a few days of each shipment. The payment by the defendant for the goods which were shipped to it in September, and which it later returned to Rosenfeld, was made to the plaintiff. It was agreed that, before any of the shipments of goods were made, the defendant had notified Rosenfeld of its claim of credit for the returned goods but never had notified the plaintiff of any such claim and that the plaintiff had no notice or knowledge of any claim of set-off by the defendant against the accounts until on or about December 4, 1909, the due date of the same, at which time the defendant sent a check for $245.70 to the Mutual Alliance Trust Company, to which the plaintiff had directed payments should be made for the account of the plaintiff, stating at that time to the plaintiff that the check was in full settlement of all accounts of Rosenfeld against the defendant.</p> <p>Other evidence is described in the opinion. At the close of the evidence, the judge at the request of the plaintiff found as a fact that at the times when the defendant received each notice of the assignments above mentioned, it knew all the facts on which it based the claim against Rosenfeld which it sought to set off against the claim of the plaintiff; and that at no one of such- times did it notify the plaintiff of such facts or in any way intimate to the plaintiff that it had any claim against Rosenfeld as an off-set against the accounts assigned by Rosenfeld to the plaintiff.</p> <p>The judge also, at the plaintiff’s request, ruled that the accounts on which the plaintiff sued were assigned to it by Rosenfeld and that due notice of each such assignment was duly received by the defendant.</p> <p>The following rulings, asked for by the plaintiff, were refused:</p> <p>“1. Upon all the evidence, the plaintiff is entitled to recover.</p> <p>“2. The defendant is estopped to set up against the claim of the plaintiff herein claipi of set-off described in the declaration of set-off filed herein. , .</p> <p>“3. The defendant has waived the claim of set-off it seeks to make by its declaration in set-off against the plaintiff’s claim.”</p> <p>The judge found that the defendant was entitled to set off against the plaintiff’s claim the value of the goods returned to Rosenfeld, and found for the plaintiff and for the defendant in set-off in equal amounts, setting one finding off against the other, leaving no balance due either party. The plaintiff alleged exceptions.</p>

<p>Appeal from a decree of the Probate Court for the county of Middlesex allowing the will of James Ford late of Newton. The appellant was the only son of the testator.</p> <p>The following issues were framed and were sent to the Superior Court for trial:</p> <p>1. “Was the instrument offered for probate as the last will of James Ford executed according to law? ”</p> <p>2. “At the time, of the execution of said instrument was said James Ford of sound and disposing mind and memory?”</p> <p>3. “Was said instrument procured to be made through the fraud or undue influence of A. Leslie Harwood, Jr., and John W. Fisher, or either of them? ”</p> <p>The issues were tried before Wait, J. The executors named in the will were John W. Fisher and A. Leslie Harwood, Jr. Harwood and the appellant were appointed special administrators of the estate. The bill of exceptions stated: “There was evidence from which, if believed, while evidence to the contrary was disbelieved, a jury might have found a different verdict upon each of the issues.” Certain exceptions were saved by the appellant to the exclusion of evidence, described in the opinion. The jury answered the first and second issues in the affirmative and the third in the negative. The appellant alleged exceptions.</p>

<p>Indictment, found and returned in the county of Suffolk on September 11, 1915, for the murder on August 23, 1915, of Emily Russ, the wife of the defendant.</p> <p>In the Superior Court the defendant was tried before Sisk, J. Upon a motion of the defendant for a bill of particulars the Commonwealth filed the following:</p> <p>"Now comes the Commonwealth and answering the defendant’s motion for a bill of particulars says that the time of the alleged murder was August 23, 1915; the place was 178 Centre street in the city of Boston in said county and Commonwealth.</p> <p>“The means by which said crime was committed were:</p> <p>“1. By strangulation.</p> <p>A. By human hand or hands.</p> <p>B. By strings and ropes.</p> <p>“2. By cutting the throat of deceased with a'razor. The hour said crime was committed was between midnight and twelve o’clock noon of August twenty-third, according to the best knowledge and belief of the Commonwealth, which is unable to specify more particularly.”</p> <p>The evidence is described in the opinion. At the close of the evidence the defendant moved that the jury be instructed to return a verdict of not guilty. The judge denied the motion. The defendant then asked the judge to give to the jury, among other instructions, the following:</p> <p>“1. Upon- all the evidence the jury should return a verdict of ‘not guilty.’ ”</p> <p>“3. The Commonwealth has not sustained this burden if it leaves you in doubt whether the death of Emily Russ occurred before or after 7:30 o’clock in the forenoon of August 23, 1915.”</p> <p>.“6. The Commonwealth is bound by its specifications and must establish to a moral certainty, excluding every other reasonable hypothesis, that the death of Emily Russ was caused by the defendant between twelve o’clock midnight of August 22, 1915, and twelve o’clock noon of August 23, 1915.</p> <p>“7. In considering the question of the defendant’s guilt or innocence the jury should take into consideration the absence of any evidence of motive on his part to kill his wife.”</p> <p>“ 10. The statement attributed to the defendant as having been made to the police is not an admission of guilt of the crime charged.” „</p> <p>“ 19. In determining the question of suicide the jury have the right to consider the evidence as to her mental and physical condition on the day that she died.”</p> <p>The attorney for the .defendant in his closirig argument, accounting for the cause of death, said that the night before Emily Russ died she had been melancholy and feeling miserable, and that she was sick and also homesick; that with intent to commit suicide she had prepared the rope's that were found around her neck; that one rope was the drying rope which she took from behind the stove in the kitchen, and that the other was a white cord which she took from the curtains in the front room; that she went into the front room and tied the ropes around her neck; that this caused her terrible pain and in trying to také the ropes off she scratched her neck; that she then took the razor and cut her own throat and thus ended her life.</p> <p>The judge did not give to the jury any of the instructions requested by the defendant which are quoted above, and in his charge gave instructions, to which “No exceptions were taken . . . except for the failure to give the instructions requested.” The jury returned a verdict of “ Guilty of murder in the second degree;” and the defendant alleged exceptions, including the exceptions to the admission of certain evidence which are described in the opinion.</p> <p>The cross-examination by the Commonwealth of an expert in medical chemistry called by the defendant, which is referred to in the opinion, in regard to the effect of rigor mortis, is described in the bill of exceptions as follows: "The witness was also asked as to rigor mortis and declined to testify as to the time when this occurred, as he was not qualified, that he was testifying as a chemist, not as a pathologist, . . . The witness declined to express an opinion as to the rigor mortis, stating that he was not qualified to express an opinion on that subject; that well known authorities on that subject did not conflict with his opinion; that according to these authorities the possible inception of rigor mortis was from six to ten hours, and it may go as high as seventeen hours, under unusual conditions.” The district attorney then proceeded to cross-examine the witness further on this subject, concluding as follows: “Q. Doctor, I don’t want to pester you or tire the jury, and we both want to be fair with each other- A. Surely. Q. Is this a fair statement: That you did not consider rigor mortis in reaching yóur conclusion as to the time of the death? A. No, sir. Q. Is that a fair statement? A. That is a fair statement. I am basing my opinion wholly upon my results. Q. And assuming that this was an ordinary case and that rigor mortis might have taken place from eight to twelve hours, that wouldn’t change your opinion? A. Not at all in regard to the results obtained from my examination and tests. Q. Now, doctor, if it should be shown'to you that rigor mortis occurred fifteen hours, in fifteen hours, would it affect your opinion? A. Not at all.” The defendant’s counsel then said, “One moment, if your honor pleases. There is no evidence in this case that rigor mortis occurred fifteen hours after the time of death.” The district attorney then said, “I am testing him.” The judge then said, “I understand it is for the purpose of testing the witness.”</p>

<p>Contract upon a guardian’s bond filed by the defendant Charles S. Ensign, junior, as principal, and the defendant, the Title Guaranty and Surety Company, as surety, in the Probate Court for the county of Middlesex, the breach of the bond alleged in the declaration being that the defendant Ensign as principal failed to pay over and to deliver to the ward, Josephine Faxon, upon the expiration of his trust as her guardian all the estate due from him to her as such guardian.</p> <p>The answers of the defendants alleged, besides general denial and payment, that there was pending in the Probate Court for the county of Middlesex the ninth account of the defendant Ensign as guardian, that no decree had been entered on said account adjudicating that anything was due from him to her, and that, until a decree was entered by the Probate Court on that account, no action on the bond could be maintained, for the reason that the questions, whether anything was due from Ensign as guardian and, if so, how much was due, were within the exclusive jurisdiction of the Probate Court.</p> <p>The action was heard by Fox, J., upon an agreed statement of facts. The defendants asked the judge to rule as follows:</p> <p>"1. On all the evidence, there has been no breach of the guardian’s bond.</p> <p>“2. On all the evidence, the plaintiff is not entitled to recover.</p> <p>"3. An action cannot be maintained on the guardian’s bond for his failure to turn over property of the estate to Miss Faxon, until the Probate Court shall have passed upon his ninth account and entered a decree thereon.”</p> <p>The judge refused to rule as requested and found for the plaintiff in the penal amount of the bond. The defendants alleged exceptions.</p>

Contract for a commission alleged to be due to the plaintiff as a real estate broker for procuring a sale of the defendant’s lodging-house. Writ in the Municipal Court of the City of Boston dated May 18, 1910. On appeal to the Superior Court the case was tried before Morton, J. Material evidence is described in the opinion. There was a verdict for the plaintiff in the sum of $160.22; and the defendant alleged exceptions. The case was submitted on briefs.

<p>Bill in equity under St. 1914, c. 624, filed in the Superior Court on December 6, 1917, and afterwards amended, by a citizen of Boston against the Proprietors of the Revere House, a corporation,, the owner, and Rodney S. Harrison, the lessee, of the Revere House in Boston, alleging that the premises had been used for prostitution, assignation and lewdness and seeking the relief by injunction and sale provided by the statute.</p> <p>The defendants moved that issues be framed for trial by a jury. The motion was heard by J. F. Brown, J., and was denied.</p> <p>The suit then was heard by the same judge upon the merits. The hearings lasted ten days and no further evidence remained to be submitted by either side. “A large amount of evidence was ■offered by the respective parties and was received on the question whether or not the hotel had been used in violation of the provisions of St. 1914, c. 624, § 1. The plaintiff argued that this evidence showed that the hotel was a nuisance as defined in this section and the defendants contended to the contrary. This is the only controverted issue of fact in the case.”</p> <p>The defendants made a number of requests for rulings, described in the opinion, raising the questions, also there described, as to the constitutionality and construction of the statute. All these rulings were denied and the defendants excepted.</p> <p>The judge then reported the case to this court for determination, stating, “All the evidence has been received and I am ready to make a finding upon the above mentioned controverted issue of fact, and should do so now, if it were not my opinion that the interlocutory order denying the defendants a jury trial and the requests for rulings above set out so affect the merits of the controversy that these matters ought before further proceedings to be determined by the full court. . . .</p> <p>“I am also of the opinion that, under the circumstances of this particular case, the ends of justice as well as the public interest require a determination by the full court of these matters before a finding of fact is made by me .upon the question whether the premises were used contrary to the provisions of St. 1914, c. 624, § 1. It appeared in evidence that owing to the large number of soldiers and sailors belonging to the army and navy of the United States now frequenting the city of Boston there is a great, special and necessary public concern respecting the prevalence of prostitutian; that the restriction of this evil in hotels and cafés is a matter of great difficulty but is a thing very necessary to accomplish, if possible, in the public interest generally and particularly in the-interest of the army and navy at the present time; and that statute, if constitutional and applicable, indicates a way of reaching this evil as it exists in hotels and cafés more effective than that afforded by the provisions of R. L. c. 101. It is important, therefore, that the true construction and validity of this act should be determined by the Supreme Judicial Court at the earliest opportunity.</p> <p>“Such opportunity would, in an ordinary case, be furnished without injustice to either party if I completed my findings of fact and then either entered a decree for the plaintiff or the defendants as the case might be, or without such decree reported the case on the pleadings, findings and rulings to the full court; but in this particular case, if I adopt either of these courses and if in doing so I should find as a fact that the premises had been used for the purpose prohibited by § 1 of the act, and then the full court should determine that the act was either not constitutional or not applicable, or that there had been error in any rulings of law, the defendants would sustain unjustly a great and irreparable damage.</p> <p>“I am of the opinion that this is one of those cases where in order to prevent injustice a court of equity should report the case to the full court without making all the findings of fact which in an ordinary case would be proper. I am also of the opinion that no time will be lost in thus reporting the case.</p> <p>“For the foregoing reasons I report the case to the Supreme-Judicial Court upon the bill of complaint, stipulations of the parties, the answer of the defendant corporation, the answer of the defendant Harrison, the plaintiff’s replication; the interlocutory refusal or order denying the defendants the privilege of a jury trial and the defendant’s exception thereto; the defendants’ requests for rulings of law, my refusal to make the same, and their exceptions to this action. ... If the full court determines that the act of 1914 is constitutional and applicable, and that the defendants are not entitled to a jury trial and settles the question of the degree of proof required, my findings of fact are to be completed in accordance with the opinion of the full court on the. other questions of law raised by the requests for rulings, without further hearings or proceedings of any kind, and I am at once to order a final decree. If the full court determines that the act is constitutional and applicable but that the defendants are entitled to a jury trial, issues are to be framed for a jury and the cause is to proceed as usual in such cases. If the full court should determine that the act is not applicable or not constitutional, a final decree is to be entered for the defendants; and the same action is to be taken as to the defendant corporation if the court holds that any of the separate rulings requested by it other than that relating to the degree of proof should have been given.”</p>

<p>Bill in equity, filed in the Supreme Judicial Court ou April 5, 1917, by a laster, who had been employed for many years in shoe factories in Lynn, against the officers and members of an unincorporated association called Lasters’ Local Number 1, praying (1) “That the defendants be enjoined forthwith from interfering or from combining, conspiring or attempting to interfere with the plaintiff in obtaining and holding employment, and from intimidating or threatening persons who might employ or desire to employ the plaintiff, and from in any way hindering the plaintiff in obtaining or continuing in employment.” (2) “That an account be taken of the damage caused the plaintiff by the acts” complained of, (3) for costs and (4) for further relief.</p> <p>The case was referred to a master, who filed a report containing the findings that are quoted and described in the opinion. No objections nor exceptions to the master’s report were filed. The case was heard upon the master’s report by Jenney, J., who made an interlocutory decree that the master’s report be confirmed* Later by order of the judge a final decree was entered ordering that the bill be dismissed with costs to the defendants. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on March 8, 1918, by a worker in shoe factories, who up to the time of thé acts of the defendants complained of in his bill was employed as a stock fitter in the shoe factory of Rice and Hutchins, Incorporated, at Marble-head, against the officers and members of a voluntary unincorporated association called the Shoe Workers’ Protective Union, praying that the defendants be forthwith enjoined from interfering with or from combining, conspiring or attempting to interfere, directly or indirectly, by strike or otherwise, with the employment of the plaintiff by Rice and Hutchins, and from in any way intimidating or threatening persons who might thereafter employ or desire to employ the plaintiff, and from in any way hindering or preventing the plaintiff from obtaining employment or con-tinning in employment; that an account be taken of the damage' done the plaintiff by the acts complained of and a decree be entered establishing the amount of the damage and ordering the defendants to pay the same; that the defendants be ordered to pay the cost of the proceedings; and for further relief.</p> <p>The case was heard by Jenney, J. He made a finding of facts, including the facts that are stated in the opinion. At the conclusion of his finding of facts, the judge made the following order for a decree:</p> <p>“On the foregoing facts, I am of opinion and find that the plaintiff is not entitled to maintain this bill, and that a decree should be entered dismissing the bill with costs taxed as if the bill had been brought against one defendant only. But, if it should hereafter be determined that I am wrong in that opinion and that the plaintiff is entitled to injunctive relief, I find as further facts:</p> <p>“The position in which the plaintiff was employed in the factory of Rice and Hutchins yielded as wages substantially $42.50 per week, and the plaintiff has been out of work since that time down to at least March 29, 1918.</p> <p>“If the plaintiff is entitled to injunctive relief; his damages necessarily must be assessed only down to the time of the granting of such relief, and I am of opinion that no finding ought now to be made on the question of damages, because, if entitled to such relief, the question of amount will be affected by facts arising since the hearing before me, and, if entitled to relief only by way of damages, like considerations will be involved.”</p> <p>Later by order of the judge a final decree was entered dismissing the bill; and the plaintiff appealed. .•*</p>

<p>Way, Public, Private, Defect.</p> <p>The construction by a city of a granolithic sidewalk on a public way in such a manner that, at its end, it is four inches above the surface of a dirt walk which is its continuation upon the way, constitutes evidence of a defect in the public way of which the city has notice.</p> <p>Evidence tending to show that a way, laid out as a private way by the owner of a large tract of land and as a part of the tract’s development, was used not only by the abutting owners but also by the general public for more than thirty years, that for at least twenty years its use by travellers was indistinguishable from the use made of public city streets with which it was connected, and that there was no interruption of such use; that the city made repairs in the way, laid water pipes and constructed a sewer therein, installed and maintained a tungsten light thereon and constructed thereon a granolithic sidewalk under an order of the city council which made no mention of the way being private, will warrant a finding that the way had become public by adverse use, although it also appeared that, twenty-five years after the adverse use by the public began, some of the abutters petitioned to have the way made public and the city council denied the petition, and that, after the thirty-three years of adverse use, the city erected signs designating it as a private way.</p> <p>If a traveller upon a private way in a city, which is in general use by the public in connection with public streets with which it connects, is injured by reason of a defect therein, and it appears that the connection between such way and the public way is not barred nor marked with signs, the city may be found to be responsible for such injuries in an action under R. L. c. 48, § 99.</p>

<p>Stockbroker. Equity Pleading and Practice, Master’s report. Equity Jurisdiction, For an accounting. Evidence, Disregarded as irrelevant, Admissions.</p> <p>In a suit in equity for an accounting, where the bill did not allege any transactions entitling the plaintiff to recover under R. L. c. 99, § 4, money paid by him as margins on wagering contracts, a master, to whom the case was referred, erroneously admitted evidence relating to such wagering contracts, and the defendants filed exceptions to the master’s admission of such evidence and to certain of his findings based on it, but it appeared by the master’s report that all the issues of fact presented by the pleadings had been considered and passed upon by the master, and it was held, that it was not necessary to order an interlocutory decree sustaining the defendants’ exceptions described above, because the master had found the facts necessary for the disposition of the case and, in so far as he had admitted evidence and made findings on the assumption that R. L. c. 99, § 4, was applicable, such evidence and findings could be treated as irrelevant and be disregarded by this court.</p> <p>In a suit in equity for an accounting the bill alleged that, “although the plaintiff believes that nothing is due from him to the defendants, he hereby offers to pay to the defendants or to pay into court, as the court may order, all moneys, if any, which the court may find to be due from him to the defendants for which the defendants are entitled to hold the said securities as collateral.” Held, that this was not an admission by the plaintiff of any indebtedness, as the plaintiff merely offered to pay the balance in case the accounting finally should go against him.</p> <p>Although in a suit in equity for an accounting both parties may present claims and the defendant may have a decree in his favor without filing a cross bill, yet in the present case; where the defendants alleged certain counter-claims against the plaintiff, they introduced no evidence in support of their side of the account, and it accordingly was held that the plaintiff, after reimbursing the defendants for the net amount of a certain payment made by them, was entitled to a decree that certain bonds and certificates of stock bought on the plaintiff’s account by the defendants should be delivered to him.</p>

<p>Contract by the trustee in bankruptcy 'of Joseph F. Day of Lynn, for $1,484.27, alleged to be due to Day from the Coolidge Ice Company, a corporation. Writ dated .February 28, 1916.</p> <p>The defendant, the Coolidge Ice Company, filed a petition of interpleader under R. L. c. 173, §37, representing “That it admits its liability upon the contract with Joseph F. Day, as set forth in the plaintiff’s declaration, in the sum of $1,484.27, and says that the amount of such liability is not in dispute,” that the Lynn National Bank, a corporation organized under the laws of the United States, “has made claim upon the defendant for the whole of said amount due under said contract,” and that the defendant is not interested in the subject matter of the controversy between the plaintiff and the Lynn National Bank; and praying that that bank might be made a party as claimant and that the defendant, the Coolidge Ice Company, be allowed its costs out of the funds.</p> <p>The petition was allowed and the Lynn National Bank was made a party as claimant. Thereupon the bank filed an answer as follows: “And now comes the Lynn National Bank and claims said fund 'now in the hands and possession of the Coolidge Ice Company by virtue of a bill of sale of two (2) ice houses and ice therein by the said Joseph F. Day to the defendant on May 26, 1915, for a valid consideration, and that thereafter said ice, by agreement between said Coolidge Ice Company and your claimant, was sold by said Coolidge Ice Company and the sum of $1,484.27 was received by said Coolidge Ice Company for said ice; that the said Lynn National Bank is entitled to the same under and by virtue of said bill of sale and agreement herein-before specified.”</p> <p>In the Superior Court the case was heard by Hardy, J., without a jury. The evidence is described in the opinion. The judge refused to rule, at the request of the claimant, that the plaintiff was not entitled to recover, that the title to the ice passed to the claimant and that the claimant was entitled to recover the fund. The judge found for the plaintiff and assessed damages in the sum of $1,484.27. He disallowed the claim of the Lynn National Bank, and ordered that the Coolidge Ice Company be paid costs out of the fund. He ordered-that the plaintiff have costs against the claimant. The claimant alleged exceptions.</p>

<p>Agency, Existence of relation, To make admissions. Negligence, In operating motor vehicle. Motor Vehicle. Evidence, Admissions.</p> <p>In an action in this Commonwealth for personal injuries sustained by being run into by a motor car, proof that the car belonged to the defendant and was being driven by the defendant’s servant is not sufficient to entitle the plaintiff to go to the jury, if there is no evidence that the driver was acting within the scope of his employment at the time of the accident.</p> <p>In such an action against a corporation, where it appeared that the car belonged to the defendant and that the driver was employed by the defendant as á chauffeur, whose duties were “driving cars for rentals or taking parties out for automobile trips,” evidence, that the defendant’s manager on the Sunday when the accident occurred had given the driver the temporary use of the car for his own pleasure, is not evidence that the driver was the defendant’s agent while acting under this permission.</p> <p>A statement of the driver of a motor car, after he had run into a boy on a bicycle with the car when he was using the car with his employer’s permission for his own pleasure, that his employer “would take care of the boy,” is not made in the performance of the declarant’s duty and is not binding on his employer.</p>

<p>Tort for personal injuries sustained on May 12, 1914, when the plaintiff was a passenger of the defendant and was being transported in an elevator operated by the defendant at its Atlantic Avenue station on State Street in Boston. Writ dated March 8, 1916.</p> <p>In the Superior Court the case was tried before Dana, J. The material evidence is described in the opinion. At the close of the evidence the defendant filed a motion that a verdict be ordered for it and assigned the following reasons:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. Upon all the evidence upon the pleadings the plaintiff is not entitled to recover.</p> <p>“3. The plaintiff was not in the exercise of due care.</p> <p>“4. There is no evidence that the defendant’s negligence contributed to the injury.</p> <p>"5. There is no evidence that the defendant should have reasonably anticipated and guarded against the alleged harmful misconduct on the part of other passengers, operating to cause the plaintiff’s injuries.</p> <p>“6. There is no evidence in the record of previous acts at this station from which it could have inferred that injury was likely to happen to the plaintiff by being crowded off her balance by other passengers.”</p> <p>The judge denied the motion. The defendant also made requests for rulings which were refused by the judge. The jury returned a verdict for the plaintiff in the sum of $1,850. There was a motion for a new trial,.which was denied by the judge. The defendant alleged exceptions, which are described in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Damages, Nominal. Evidence, Of conscious suffering, Manner of utterance, Presumptions and burden of proof.</p> <p>In an action by an administrator for personal injuries sustained by the plaintiff's intestate, a girl ten years of age, which resulted in her death on the night of the following day, if there is no evidence that the intestate was conscious after her injury, although the plaintiff cannot recover substantial damages, it is error for the presiding judge to order a verdict for the defendant, where there is evidence of the defendant’s negligence without contributory negligence of the intestate, because, if the jury find for the plaintiff on these issues, he is entitled to a verdict for nominal damages.</p> <p>Tn the action above described, the only evidence to indicate consciousness of the intestate between the time of her injury and that of her death was the testimony of her parents that at the hospital the child in answer to her mother’s call said, “Oh, momma,” and that “that was all she said.” The presiding judge ordered a verdict for the defendant “Upon the ground that there was not sufficient evidence of conscious suffering to. warrant a verdict for the plaintiff under said count.” Held, that whether the utterance of the words “Oh, momma” indicated conscious suffering depended largely upon the inflection and intonation with which they were uttered by the child and that the jury might be able to determine this from the voices of the witnesses in describing her speaking of the words, so that it could not be said as matter of law that there was no evidence to warrant the jury in finding conscious suffering.</p>

<p>Petition, filed in the Superior Court on June 7,1915, under St. 1909, c. 490, Part I, § 77, by Wheaton College, incorporated as a literary institution within the meaning of St. 1909, c. 490, Part I, § 5, cl. 3, to abate certain taxes assessed upon its real estate by the town of Norton' in the year 1914.</p> <p>The case was referred to a commissioner appointed under § 79 of the same statute, who filed a report. The parties filed a stipulation containing additional facts and agreeing that they should constitute “a statement of agreed facts, in addition to the commissioner’s report, and that the court may draw inferences of fact.” The case was heard by Morton, J., who made certain findings, which are stated in the opinion. He made an order that the tax assessed upon the petitioner’s property be abated in the sum of $289.44 in accordance with his findings. The town of Norton appealed.</p> <p>St. 1909, c. 490, Part I, § 5, cl. 3, is as follows: “The personal property of literary, benevolent, charitable and scientific institutions and of temperance societies incorporated within this Commonwealth, the real estate owned and occupied by them or their officers for the purpioses for which they are incorporated, and real estate purchased by them with the purpose of removal thereto, until such removal, but not for more than two years after such purchase. Such real or personal property shall not be exempt if any of the income or profits of the business of such corporation is divided among the stockholders or members, or is used or appropriated for other than literary, educational, benevolent, charitable, scientific or religious purposes, nor shall it be exempt for any year in which such corporation wilfully omits to bring in to the assessors the list and statement required by section forty-one.” The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Injuries to which it applies.</p> <p>Where .the head waiter of a hotel in a city in the course 6f his duty rightfully discharged a waiter serving under him, who was of an excitable temperament and “ was made ugly by drinking liquor ” and who was an habitual drinker and habitually carried a pistol, and about three hours later the discharged waiter shot the head waiter and killed him as he was eating his luncheon, in a claim under the workmen’s compensation act by the dependent widow of the head waiter, the Industrial Accident Board found that the employee "was shot and killed solely by reason of his performance of his duties as a head waiter and that as it turned out his death resulted from a risk of his employment and flowed from that source as a rational consequence,” and awarded compensation to his widow. Held, that the finding and the award were warranted.</p> <p>Under the workmen’s compensation act, so long as an employee while in the performance of his employer’s business properly exercises the authority conferred upon him by his contract of employment, injuries received by him in consequence of exercising that authority arise out of his employment, and, if death ensues, his dependents are entitled to compensation.</p>

<p>Three actions of contract by the owner of the building numbered 451 on Washington Street in Boston for rent for the months from October, 1915, to December, 1916, inclusive, with taxes and insurance alleged to be due under a lease in writing, and</p> <p>Three like actions by the defendant in the first three actions against a sublessee. Writs dated June 6, 7, September 9 and December 16, 1916.</p> <p>In the Superior Court the cases were tried together before McLaughlin, J. The proceedings are described in the opinion.</p> <p>In each of the cases the judge ordered a verdict for the plaintiff. In doing so the judge made the following statement:</p> <p>“ As I understand it, the only issue or issues raised by the defendant in any of these actions is that the rent is to be abated and that he is entitled to have damages recouped on the theory that the plaintiff failed to restore the premises to the condition in which they were before the first fire, as well as to avail himself of an abatement because he claims they were rendered unfit for use; and my ruling is that those qúestions, so far as the first fire was concerned, were concluded by the judgment in the action which was tried and on which the plaintiff had judgment.</p> <p>“My ruling is that the defendant is precluded so far as any right to have the rent abated or to have damages determined or recouped because of any failure on the part of the plaintiff to restore the premises to the condition in which they were before the first fire, by the judgment in the first action. My ruling^ is that he is precluded as to those matters by the judgment in that case.</p> <p>“And that, as I understand it, is the only ruling to which any exception is taken, and if my ruling is correct it is conceded that the verdicts which I am about to order in the amounts agreed upon by counsel are properly ordered — if my ruling is correct.”</p> <p>The decision of this court in the previous actions referred to by the judge is reported in 227 Mass. 575.</p> <p>The defendants alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on November 2, 1918, by the Hillside Co-operative Bank, a corporation having a usual place of business at Medford, against Mary E. Robertson and her trustee in bankruptcy and others, to reform a certain mortgage deed given by the defendant Robertson to the plaintiff, so that it might be a valid incumbrance on lot Number 8 shown on a plan made by W. A. Mason dated April, 1863, and recorded with the Middlesex South District Deeds in Book of Plans 11, Plan 19.</p> <p>The case was heard by Fox, J., who reported it for determination by this court with his findings of fact which are stated in the opinion. The judge concluded his report as follows: “The case was tried before me in the Superior Court, and upon the foregoing facts, all of the evidence being documentary except the testimony of Mr. Sleeper [the plaintiff’s title examiner], I find that the original grantor intended to convey Lot 8 and not Lot 7; that subsequent grantors have perpetuated the same mistake; that the only identifying mark upon the ground was Olmstead’s adjoining house lot; and that this case was one of mutual mistake and the plaintiff was entitled 'to reformation of its mortgage deed, and to hold it against the trustee in bankruptcy representing both the general and the attaching creditors.” At the request of the defendant trustee in bankruptcy, the judge reported the case for determination by this court. It was agreed that, if the plaintiff was not entitled to reformation of its mortgage, a decree was to be entered dismissing the bill with costs. If the plaintiff was entitled to reformation of its mortgage, but subject to the liens of the attaching creditors, a decree was to be entered that the mortgage be reformed subject to the liens, to be preserved by the defendant trustee in bankruptcy in such sums as should be determined hereafter, and without costs to either party. If the plaintiff was entitled to reformation of its mortgage and the liens of the attaching creditors were subordinate to this mortgage, a decree was to be entered for the reformation of the mortgage with costs.</p>

<p>Conversion. BUI of Lading. Carrier, Of goods. Payment.</p> <p>Where goods are shipped by rail under a bill of lading, which provides that the carrier shall deliver the goods “only on surrender of original bill of lading properly endorsed,” and where by an accident the consignee receives the bill of lading unindorsed without having paid anything for it and without having accepted the shipper’s draft for the price of the goods, and on presentation of this unindorsed bill of lading the last connecting carrier delivers the goods to the consignee, the carrier is liable to the shipper in an action of tort for the conversion of the goods.</p> <p>Where the consignee of a carload of goods, which he agreed to pay for by accept! ing a draft for the purchase money attached to the bill of lading, has received the goods without paying for them and without accepting any draft for the purchase money, and thereafter sends to the shipper a check for a sum $60 less than the price of the goods, thus deducting the amount of a claim made by him and disputed by the shipper arising out of a previous transaction, and where across the end of the check is written, “In settlement of Car. 25238,” designating the carload of goods which the consignee had received, and thereupon the shipper notifies the consignee that the check will' not be accepted as payment but does not return it, and payment on it afterwards is stopped, there has been no payment of the whole or a part of the purchase money and the shipper was under no duty to accept the check in part payment.</p>

Tort by a woman sixty-one years of age for personal injuries sustained on November 26, 1915, when the plaintiff as a customer of the defendants and by their invitation was at the defendants’ dry goods store in the building numbered 100 on Kingston Street in Boston, by reason of falling on an inclined runway maintained by the defendants as a passageway in their store, which was alleged to have been in a dangerous and unsafe condition on account of its smooth and slippery…

<p>Tax, Sale for non-payment. Interest.</p> <p>Under R. L. c. 12, § 72, unless a city votes by its city council that on all taxes assessed therein “remaining unpaid after a certain time interest shall be paid at a specified rate, not exceeding six per cent a year, and such interest shall be added to and be a part of such taxes,” the collector of taxes of the city has no authority to charge interest on an unpaid tax, and, if he does so in making a sale of land for non-payment of the tax, the tax becomes invalid and the sale is void.</p>

<p>Railroad, Change in bridge at crossing.</p> <p>On a petition under St. 1906, c. 463, Part I, §§ 25, 26, after the county commissioners have determined that an alteration, which does not involve the abolition of a crossing at grade, shall be made in the crossing of a railroad over a public way in a city by rebuilding the bridge over the railroad, for the appointment of a special commission to determine which party shall carry such decision into effect and which party shall pay the charges and expenses of making such alteration, the special commission thus appointed have authority to determine that the cost, amounting to $1,156, of the relocation of a stairway for passengers leading from the elevated platform of the railroad station to the street level below shall be paid for wholly by the city, although both the original and the relocated stairway were wholly on the property of the railroad corporation and were for the use of patrons of the railroad corporation who desired to enter or leave the station by way of the adjoining street, such change in the location of the stairway being incidental to the principal work ordered by the county commissioners and it being assumed that the special commission in making such incidental order found that the city had been specially benefited by the change in the location of the stairway.</p>

<p>Replevin by the seller of certain machines and motors under a contract in writing of conditional sale and under a provision in that contract giving him the right to retake the property upon default of the buyer, the defendant. Writ in the Municipal Court of the City of Boston dated February 25, 1918.</p> <p>The defendant filed the following plea in abatement: “And now comes the defendant in the above entitled cause and says that he ought not to be compelled to answer the plaintiff’s writ, for that there is now pending in the Superior Court for Suffolk County a bill in equity, brought by the defendant in this case against the plaintiff in this case. Said bill in equity having been filed on the third day of November, 1917, wherein the title to the property described in the plaintiff’s writ is brought in question. Wherefore this defendant prays that the plaintiff’s writ may be abated and that he may be allowed his costs.”</p> <p>The defendant also filed an answer not waiving his plea in abatement and containing a general denial.</p> <p>In the Municipal Court the case was heard upon the plea in abatement. A copy of the bill in equity referred to was introduced in evidence, the substance of which is described in the opinion. The defendant asked the judge to rule that as a matter of law “the plaintiff cannot maintain his action until after the bill in equity between the same parties, concerning the same property, has been disposed of.” The judge refused to make this ruling and overruled the defendant’s plea in abatement. At the request of the defendant he reported his order to the Appellate Division.</p> <p>The Appellate Division made an order that the report be dismissed; and the defendant appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 2, 1918, by the trustee under the will of Cornelia A. Taft, late of Worcester, for instructions as to her duties under the eighth article of that will, which is quoted and described in the opinion. The case came on to be heard upon the pleadings and an agreed statement of facts before Rugg, C. J., who at the request of all the parties reserved it for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p>Workmen’s Compensation Act, Notice, Knowledge of injury.</p> <p>In a claim under the workmen’s compensation act against a town that had accepted St. 1913, c. 807, where the injured employee gave no notice in writing of his injury under St. 1911, c. 751, Part II, §§ 15-18, and the town had knowledge of the injury by means of a report filed about five months after the injury, it was held that a finding of the Industrial Accident Board, that the subscriber “did not have knowledge of the injuries as soon as practicable after their occurrence” and therefore that the knowledge of the injury did not cure the want of notice, could not be said to have been unwarranted.</p>

<p>Tort by the administrator of the estate of Barzillai Eldridge, late of Chatham, to recover for the conscious suffering and death of the plaintiff’s intestate by reason of his being knocked down and run over by a motor car owned by the defendant and driven negligently by the defendant’s servant on July 11, 1915, when the intestate in the exercise of due care was walking lawfully on Main Street in the part of Chatham called South Chatham. Writ dated September 21, 1915.</p> <p>The declaration contained counts at common law for conscious suffering and counts under R. L. c. 171, § 2, as amended by St.</p> <p>1907, c. 375, to recover damages for the benefit of the intestate’s next of kin for causing the death of the plaintiff’s intestate.</p> <p>The answer contained a general denial and alleged that negligence of the plaintiff’s intestate contributed to his injury.</p> <p>In the Superior Court the case was tried before Raymond, J.</p> <p>The evidence material to the only exceptions relied upon is described in the opinion. The court adjourned while the jury was out but the judge was where he could be called to the court room, and the jury in the absence of counsel returned a verdict for the plaintiff in the sum of $4,892.30, “which verdict was affirmed by the court.” The jury thereupon were excused and separated, the jurymen going to their respective homes. That was on Friday, October 19, 1917. On Wednesday, October 24, 1917, the judge called the jury together and instructed them as follows: “I have called you together as the jury in the case of B. Bertram Eldridge, administrator, v. Elizabeth H. Barton, in order that your statement in your verdict may express precisely what you actually did find, in two particulars, about which the court should have instructed you with greater definiteness. I did instruct you, as I now recall, and I think I stated it with precision, to find the damages in the case for conscious suffering and for the death, and to add the two together, and then figure interest thereupon, and return the same as your verdict, and that, I have no doubt you did. As I look over the papers, my attention is directed to the fact that the parties interested for the conscious suffering and for the death are, or, at any rate may be, slightly different parties, and therefore it is vital that you express in your verdict the amount that you did actually find when you were originally in the case, about each of those particulars about which I instructed you, I think very fully, the other day. The sum of your verdict as you returned it you are not to change in any particular. That is your finding, that is the finding in the case; but in order to express fully what you did actually find the other day, I now direct you to take these two blank pieces of paper which I will deliver into your hands, Mr. Foreman, one of them saying at the foot, ‘Death,’ and the other saying at the foot, ‘Conscious suffering,’ and put on those two pieces of paper your exact finding of the other day, not changing it in any particular from what you made it the other day, adding no other interest, or anything of that sort, but so that the two together will show what you did actually find at that time for the death and for the conscious suffering, the two together, of course, amounting to $4,892.30; that is, that was your verdict the other day; and that you are not to change, as I have already stated, in any particular. You will retire and make your figures on this.”</p> <p>The defendant objected and excepted to the ruling that he was not entitled to be heard, and also to the instructions given to the jury, and also to the failure to instruct the jury that, if they had not agreed on separate amounts, one for conscious suffering and one for death, they had no power then to do so.</p> <p>The jury then retired, and on their return reported that they found for the plaintiff and assessed damages for causing death in the sum of $4,057.80 and assessed damages for conscious suffering in the sum of $834.50. The verdict was thus recorded, subject to the defendant’s exception.</p> <p>The defendant alleged exceptions, of which the only ones relied upon at the argument are described in the opinion.</p> <p>The case was submitted on briefs.</p>

Contract on a judgment against the original defendant, Warren M. Hill, for $4,478 obtained in the Superior Court by the plaintiff on May 2, 1904. Writ dated March 30, 1914. The defendant’s answer set up his discharge in bankruptcy on December 3, 1912, and an authenticated copy of the certificate of discharge was annexed to the answer.

<p>Contract, Construction, Performance and breach. Words, “Sale.”</p> <p>In an action against a chemical corporation for the breach of a contract in writing, it appeared that the defendant by the contract agreed "that if it ever sells the filler business for Canada or for any foreign country,” it will pay the plaintiff a proportional part of the price received. The filler business referred to was the right to manufacture and sell a certain patented compound known as the Besto shoe filler used in the manufacture of shoes. Thereafter the defendant granted to a British corporation, which theretofore had been its sole agent to sell “Besto” in England, "an exclusive license under the patents aforesaid”in the territory of Great Britain and Germany “to manufacture, use, exercise and sell its Besto bottom filler” between certain dates, covering a period of about ten years. The defendant agreed to make no sales of the filler except for its American trade and agreed also to pay one half of the British income tax in five annual payments. While this contract was in force a supplemental agreement was made between the defendant and the British corporation called a “License Extension,” extending the term of the license for a further period of five years on six months’ notice to the defendant. By this supplemental agreement the. defendant agreed to relieve the British corporation from paying German taxes and the defendant was to have the privilege of selling "Besto” in Germany, Australia and South America. The defendant also agreed to continue to supply the British corporation with the compound for the manufacture of the filler on stipulated terms and to guarantee the compound to be correct, and was not required to transfer the formula for the preparation of the compound to the British corporation until the end of five years. Held, that the license and license extension granted by the defendant to the British corporation were not a sale of the “filler business” within the meaning of the defendant’s contract with the plaintiff.</p> <p>The word “sale” means the transfer of property from one person to another for a consideration of value. It "implies ordinarily the passing from seller to buyer of the general and absolute title to property as distinguished from a special interest, a bailment, a license, a lease, a pawn or other limited right falling short of complete ownership.” By Rugg, C. J.</p>

<p>Contract against the city of Woburn on a contract in writing dated June 18, 1912. Writ dated June 26, 1915.</p> <p>In the Superior Court the case was submitted to Morton, J., upon a statement of agreed facts, containing the facts that are stated in the opinion. The judge found the facts to be as agreed and stated that he drew no inference of fact from those stated and found no further facts. At the request of the parties the judge under St. 1917, c. 345, reported the case for determination by this court without making any decision thereon.</p>

<p>Devise and Legacy, Gift to a class.</p> <p>A testator provided by his will that, after the death of his wife, the income of a trust fund should be distributed equally among his three sons, and then provided as follows: “At the decease of either of my said sons his share of said net income, if any, shall be paid over to his issue then living, if he have any, otherwise to my surviving sons and the issue of any deceased son, living at the time of his decease, said issue to take their deceased parents share by right of representation, until the decease of my last surviving son; then and at that time, the said trustees shall pay over to the issue of each son, the parent’s share of the principal of said trust fund, with any income then unpaid belonging to such share.” The testator left a widow and three sons. The widow died. One son died, leaving no issue. A second son died, leaving a son and a daughter. This grandson of the testator died testate, leaving no issue and making his widow the sole beneficiary under his will. The third son of the testator still was living. Held, that, until the death of the testator’s last surviving son, the trustee should pay the share of the income which theretofore had been paid to the testator’s grandson, then deceased, to the sister of such grandson, to the exclusion of his widow and sole beneficiary of his will, the purpose of the testator having been (as shown by the provisions above quoted) that, upon the death of any one of his sons, that son’s share of the income of the trust should be enjoyed exclusively by the issue of that son as a class.</p>

<p>Conservator. Contract, Implied in law. Bank.</p> <p>"Where a conservator makes a deposit in a bank in his own name as conservator for his ward and thereafter the ward dies and the bank pays the amount of the deposit to the executor of the will of the ward without any order from the conservator to do so and before the conservator’s account has been passed upon by the Probate Court, the conservator can demand from the bank the payment to him of the amount of the deposit and, on its refusal, can recover that amount from the bank in an action of contract.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act, as amended, from a decision of the Industrial Accident Board, awarding all the compensation allowed for the death of Hugh Gavaghan, late of Lowell, who died on December 15, 1917, from an injury received on December 11, 1917, to his widow Elizabeth Gavaghan, excluding the claim of his daughter Anna F. .Mason, who was decided not to be a dependent under the act.</p> <p>In the Superior Court the case was heard by Chase, J. The facts reported by the Industrial Accident Board are stated in the •opinion. The judge made a decree in accordance with the de•cision of the Industrial Accident Board awarding to Elizabeth 'Gavaghan a weekly compensation of $8.23 beginning December 11, 1917, and continuing each week until the sum of $4,000 shall have been paid, subject to the provisions of the act. Anna F. Mason ¡appealed.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of contract, each on a policy of insurance in the Massachusetts standard form, insuring against fire to the amount •of $1,000 hay, grain, vehicles, machines, harnesses and implements •and any other ’farming and team equipment, contained in the barn or building in the rear of 301 Carew Street in Springfield, “ and also on horses, no one horse to be valued over $500; all while contained in said building or barn.” Writs dated March 17,1910.</p> <p>In the Superior Court the. cases came on to be heard before King, J., upon an agreed statement of facts, including the facts that are stated in the opinion. The judge found the facts to be as stated in the agreed statement and reported the cases for determination by this court.</p> <p>The cases were submitted on briefs.</p>

<p>Contract against the administrator of the estate of Mary B. Welch, late of Danvers, who was the mother of the plaintiff, alleging that the defendant’s intestate induced the plaintiff to give up her usual and customary employment and to work for the intestate as housekeeper and nurse and promised to pay the plaintiff and to recompense her, according to an account annexed. Writ dated February 18, 1915.</p> <p>In the Superior Court the case was tried before Quinn, J., upon an auditor’s report and oral evidence, as described in the opinion with the rulings of the judge thereon. At the close of the evidence the defendant asked the judge to make nine rulings. The judge made the sixth and seventh rulings thus requested. They were as follows:</p> <p>"6. The presumption is that the services rendered by the plaintiff were gratuitous, and the burden is upon the plaintiff to rebut that presumption by evidence.</p> <p>“7. Under the circumstances disclosed by the evidence, the plaintiff cannot recover unless she shows that, at the time she rendered the services for which she claims compensation, it was-understood both by herself and her mother that she should be paid for them.”</p> <p>The other rulings requested by the defendant were as follows:</p> <p>“ 1. Upon all the evidence, the plaintiff is not entitled to recover.</p> <p>“2. Upon all the evidence, there must be a finding for the defendant.</p> <p>"3. Upon all the evidence, the plaintiff was never emancipated from the home of her parents.</p> <p>“4. Upon all the evidence, the plaintiff never performed any services for her mother, Mary B. Welch, different or distinct from those services usually performed by a daughter in the home of her parents.</p> <p>"5. Upon all the evidence, during a part of the time when the services alleged were rendered by the plaintiff she was a minor.”</p> <p>“8. Upon all the evidence, there was no understanding or arrangement between the plaintiff and her mother, either at the time she began to render the services or during the period of their rendition, that she should receive pay for them.</p> <p>“9. Upon all the evidence, the relationship between the plaintiff and her mother, Mary B. Welch, was that of daughter and mother and not mistress and servant.”</p> <p>The judge refused to make any of these rulings and found for the plaintiff in the sum of $350. The defendant excepted.</p> <p>The last paragraph of Rule 31 of the Superior Court, 1915, is as follows: “On the coming in of the auditor’s report, either party may move for entry of judgment according to said report; and the court, thereupon, shall order such judgment to be entered, unless, within a time stated, cause appears or is shown to the contrary. If cause appears or is shown, the court may hear the parties and frame appropriate issues for the court or jury, upon which the trial shall be had.”</p>

<p>Judgment, Of sister State. Jurisdiction. Evidence, Presumptions and burden of proof. Constitutional Law.</p> <p>In an action against an insurance company on a judgment obtained against it in another State, where the defence relied upon was that the court in which the judgment was obtained had no jurisdiction over the defendant, it appeared that in the action in the other State in which the judgment had been obtained gervice had been made upon the insurance commissioner of that State, appointed by the defendant its attorney upon whom service might be made under a statute of that State providing that the authority of the appointment “shall continue in force irrevocably as long as any liability of the company remains outstanding in this State,” that five years before that action was brought the defendant had ceased to do business in that State, that the declaration in the action in which the judgment was obtained contained five counts, each admitted to be for the same cause of action, and that only one of the five counts, which was on an account stated, alleged a liability existing before the defendant’s license to do business in that State had expired and before the defendant actually had ceased to do business there. The trial judge refused to rule that the plaintiff could not recover and found for the plaintiff. Held, that the general presumption in favor of the regularity and validity of' judgments of the courts of sister States required the inference that the judgment sued upon was rendered upon the only count of the declaration upon which the court had jurisdiction to enter judgment, which alleged a liability existing before the defendant ceased to do business in that State, and that it was not necessary for the plaintiff to prove that the judgment was in fact entered upon that count, because, the record being silent upon this point, the jurisdictional fact was implied by law in support of the judgment.</p> <p>In the case above described it also was held that the conclusion of this court that the statute of the sister State thus authorized the service of process on the defendant, upon the facts presumed, was not in violation of any rights secured to the defendant by the Fourteenth Amendment to the Constitution of the United States and was in conformity with the provision of art. 4, § 1 of the Constitution of the United States requiring that full faith and credit shall be given in each State to the judicial proceedings of every other State.</p>

<p>Equity Jurisdiction, To set aside instrument for want of sufficient mental capacity in maker.</p> <p>In a suit in equity, brought by the conservator of the property of the plaintiff, to set aside a mortgage and note signed by the plaintiff on the ground that the plaintiff was not of sufficient mental capacity to execute the instruments, a master found that the plaintiff “had been subject to epileptic fits for about ten years, and her mind had become permanently impaired and she did not have sufficient mental strength to care properly for her property and to understand the effect of the mortgage and note, and did not understand the effect,” that she derived no benefit from signing the mortgage and note, the entire proceeds thereof going directly to her brother, through whose influence she was induced to sign them, that she had sufficient capacity to understand that she was signing a mortgage and note and did so understand, but was not of sufficient capacity to appreciate the effect the signing of the papers might have on her estate or to judge of the wisdom or unwisdom of the transaction and did not understand it. Held, that on these findings a decree should be entered declaring the mortgage and note to be void and ordering the defendant to deliver to the plaintiff the note and a discharge of the mortgage.</p> <p>In a suit in equity to set aside an instrument on the ground that the person who executed it was not of sufficient mental capacity to be capable of transacting the business of making it, an inability to realize the true purport of the matter in hand is equivalent to mental incapacity, and when this is established the instrument is voidable.</p> <p>In such a suit in this Commonwealth it is no defence that the party to whom the instrument was given acted fairly and without knowledge of the want of mental faculty or of any circumstance which ought to have put him on inquiry.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on October 18,1918, by the trustees under the will of Benjamin S. Rotch, late of Milton, who died on August 19, 1882, for instructions, as explained in the opinion.</p> <p>The case came on to be heard before Braley, J., who at the request of all the parties reserved it upon the bill and answers for determination by the full court.</p>

<p>Contract as alleged below. Writ dated October 11, 1916. The declaration, as amended, was as follows:</p> <p>“ Count 1. And the plaintiff says that the defendant owes him the sum of $625, according to the account hereto annexed, marked Exhibit A, with interest thereon from the due date of each payment.</p> <p>A</p> <p>Standard Bottling & Extracts Co., to</p> <p>A. S. Rosenfeld, Dr.</p> <p>Twenty-five payments of $25, the first coming due on April 15, 1916, and one each and every week thereafter up to and including October 7,1916, in accordance with agreement of June 13, 1914.</p> <p>“ Count 2. And the plaintiff says that the defendant agreed to pay him the sum of $25 a week for the unexpired period of a contract in writing between them dated June 13,1914, in consideration of the plaintiff’s agreeing to waive an accounting under said contract, and to accept the said payment in full satisfaction of all his rights under his contract; and the plaintiff says that he did all things by him to be done in accordance with said agreement, but that the defendant neglected and refused to pay him the agreed sum after the payment of April 15,1916, having made all payments up to said date; wherefore, the defendant owes him the sum of $625, being twenty-five payments of $25, which accrued and became due and payable on and after said April 15 up to and including October 7, 1916, together with interest thereon from the due date of each said respective payments.</p> <p>“Count 3. And now comes the plaintiff in the above entitled action and says that on or about the 13th day of June, 1914, he entered into a contract with the defendant evidenced by a memorandum in writing, whereof a copy is hereunto annexed marked exhibit A; that he was at all times ready, willing and able to perform and did perform all the conditions, covenants and obligations under the terms of said contract by him to be performed except such as were excused of performance by the defendant, but that the defendant has failed to perform conditions, covenants and obligations by it to be performed in that it has failed and refused to pay to him the sum of Twenty-five ($25.00) dollars per week as in said contract provided, beginning with the payment coming due on April 15, 1916, and each payment coming due thereafter all to the great damage of the plaintiff.</p> <p>“ Count 4. And' now comes the plaintiff in the above entitled action and says that on or about the 13th day of June, 1914, he entered into a contract with the defendant, whereof a memorandum in writing is hereunto annexed marked exhibit A; that subsequently thereto the said contract was modified orally whereby in consideration of the plaintiff’s waiving an accounting for all profits prior to the date of said oral agreement coming to him under the said contract in writing, and the giving to the defendant by the plaintiff of the right to use certain formulas then owned by the plaintiff for the making of products used by the defendant in its business, the defendant agreed to pay the plaintiff the contract sum of Twenty-five ($25.00) dollars per week for the unexpired portion of the contract, to wit: five (5) years from January 1, 1915, and released the plaintiff from any and all obligations to solicit orders for the sale of the defendant’s products as in the written contract contemplated; that the plaintiff has at all times been ready, willing and able to perform all the conditions, covenants and obligations by him to be performed under the said modified contract, but that the defendant has failed to perform the conditions, covenants and obligations by it to be performed in that it has failed and refused to pay the said sum of Twenty-five ($25.00) dollars per week from and including the payment coming due on April 15th, 1916, all to the great damage of the plaintiff.</p> <p>A</p> <p>“Memorandum of Agreement between the Standard Bottling & Extract Co. and A. S. Rosenfeld.</p> <p>Length of Agreement.</p> <p>Ending January 1st, 1915.</p> <p>Territory.</p> <p>Pennsylvania except customers heretofore sold held by Standard Bottling & Extract Co. in Penn., Ohio, Indiana, Illinois, Michigan.</p> <p>Compensation.</p> <p>50% above cost on direct orders from A. S. R.; 33 1/3% on orders by mail or otherwise.</p> <p>Method of figuring costs. Salary and travelling expenses.</p> <p>Cost of container (only) plus 10% added to cost of ingredients put together.</p> <p>$25.00 per week and necessary travelling expenses to be charged against A. S. R. Profit a/c and deducted from same at expiration of agreement.</p> <p>Continuation of agreement for 3 to 5 years. Iron Bock Sales.</p> <p>Providing A. S. R. salary and travelling expenses is fully covered by his profits on sales in his territory and sales on Iron Bock.</p> <p>A. S. R. to receive 1/3 profits on all sales of this item.</p> <p>Standard Bottling and Extract Co.,</p> <p>0. A. Atkins, Treas.</p> <p>Alfred S. Rosenfeld.”</p> <p>The answer as amended contained the following:</p> <p>“And the defendant further answering says that, if there was a contract entered into between the plaintiff and the defendant as set forth in the plaintiff’s declaration, it was an agreement that is not to be performed within one year from the making thereof, and that the said promise, contract or agreement upon which this action is brought, or some memorandum or note thereof, is not in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.”</p> <p>In the Superior Court the case was tried before Sanderson, J. The material evidence and the portion of the judge’s charge excepted to by the defendant are described in the opinion. The jury returned a verdict for the plaintiff in the sum of $761.33; and the defendant alleged exceptions.</p>

<p>Contract upon a policy of liability insurance, whereby the defendant agreed to indemnify the plaintiff against loss from the liability imposed by law upon the insured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any person or persons not employed by the insured while at or about the work of the insured and during the prosecution of the said work at the place or places mentioned in a schedule attached to the policy, “provided such bodily injuries or death are suffered as a result of accidents occurring within the period of twelve months beginning” October 4, 1911, and ending October 4, 1912. The substituted declaration alleged, “that one Georgia Reed, not an employee of the Boston Elevated Railway Company, accidentally suffered bodily injury and made a claim and later brought a suit against this plaintiff. Due notice of said claim and suit were given to this defendant, but this defendant neglected, refused and failed to investigate and defend said suit as required by the terms of its policy. At the trial of the case of Georgia Reed vs. Boston Elevated Railway Company said Georgia Reed claimed that she was injured by the negligence of a workman or workmen in the employ of the Boston Elevated Railway Company at the Sullivan Square terminal on or about February 8, 1912; and this plaintiff further says that said workman or workmen were electricians or wiremen employed by the Boston Elevated Railway Company who were engaged in the erection, repairs and extension of the Elevated Division of the Boston Elevated Railway Company. The Jury which heard the case of Georgia Reed vs. Boston Elevated Railway Company found as a fact that the accident to Georgia Reed happened in the manner which she described at her trial and thereupon returned a verdict for the plaintiff, and subsequently owing to the neglect, refusal and failure on the part of the defendant to investigate and defend said suit as required by the terms of its policy, this plaintiff was compelled to pay on execution the sum of $4,591.60 and also the further sum of $291.09 for investigation and defence of said suit.” Writ dated March 4, 1913.</p> <p>In the Superior Court the case was tried before Keating, J. The evidence is described in the opinion. The provision of the policy sued upon in regard to notice of an accident alleged to be covered by the policy was as follows: “Immediate written notice of any accident and of any suit resulting therefrom, with every summons or other process, must be forwarded to the Home Office of the Company, or of its authorized representative.”</p> <p>At the request of the plaintiff the judge gave to the jury the following instructions:</p> <p>“1. The defendant in writing the policy of insurance upon which this action was based, did so in view of the character, the nature and the extent of the street railway business, in which business the plaintiff was engaged.”</p> <p>“3. The plaintiff was bound to exercise only ordinary diligence and care in adopting such measures as would lead to knowledge on the part of those entrusted with the duty of giving notice to the insurance company of the occurrence of the accident and of claims for damages resulting therefrom, by proper instructions to the employes, and such other means as may be reasonable.”</p> <p>“8. The officials of the Boston Elevated Railway Company or the servants of the Elevated Railway Company charged with the duty of giving notice, under the policy, were not chargeable with the knowledge that the accident to Georgia Reed was an accident within the policy, simply because other servants of the Boston Elevated Railway Company may have had such knowledge.”</p> <p>The defendant asked the judge to make the following ruling: “ 13. That there is no evidence that the defendant waived the condition requiring notice.”</p> <p>The judge refused to make this ruling.</p> <p>The defendant made a motion that a verdict be ordered for the defendant. The judge denied the motion.</p> <p>It was agreed that the damages were $6,013.85. The defendant offered no evidence. At the close of the evidence at a conference between the judge and the counsel, the judge stated that as he understood the case there were only three questions in issue:</p> <p>“1. Whether or not the notice sent by the.plaintiff to the defendant on November 12,1912, was ‘immediate’ within the meaning of the policy.</p> <p>“2. Whether or not the defendant company waived the provision of the policy requiring immediate notice.</p> <p>“ 3. Was the accident to Miss Reed one which came within the provisions of the policy? ”</p> <p>To this statement both counsel assented.</p> <p>The judge submitted to the jury three special questions, as follows:</p> <p>“ 1.. Did the accident which Georgia Reed met with come within the policy?</p> <p>“2. Did the Boston Elevated Railway Company forward an immediate written notice of the accident and of the suit resulting therefrom to the Maryland Casualty Company?</p> <p>“3. Did the Maryland Casualty Company waive the requirement of the policy as to the time when notice of the accident and of the suit resulting therefrom should be forwarded by the plaintiff to the defendant?”</p> <p>The jury answered all three questions affirmatively and returned a verdict for the plaintiff in the sum agreed upon. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed in the Land Court on September 12, 1917, by Rosella Gardner, the grantee under a deed from Raymond H. Gardner, dated August 22, 1916, for the registration of the petitioner’s title in fee simple to a certain parcel of land with the buildings thereon in Springfield, which was the property of Horace S. Gardner, who died intestate on January 21, 1915, leaving as his alleged sole heir at law Raymond H. Gardner, the petitioner’s grantor.</p> <p>The answer of the respondent Sadie E. Gardner of Springfield alleged that she was the widow of Horace S. Gardner and that the respondents Howard J. Gardner, Maud M. Gardner, Gordon P. Gardner and Norman H. Gardner were their children, of whom she was the guardian. “Wherefore, the said Sadie E. Gardner objects to the granting of the said petition and claims her statutory share in the said property as the surviving widow of the said Horace S. Gardner and on behalf of her said children claims for them their statutory share and further asserts that said petitioner has no right" whatsoever to any share therein.”</p> <p>The case was heard by Bams, J., who made the findings that are stated in the opinion. In regard to the good faith of the respondent Sadie E. Gardner in entering into her remarriage with Horace S. Gardner the judge said, “Unless her good faith and her full belief must be affected by facts that she could readily have ascertained, or by what she must be presumed to have known as to the law, I find that she entered upon the second marriage contract in good faith and in the full belief that the former marriage had been annulled by a divorce. I rule that her good faith and belief were not impugned by circumstances which might have put'a person of prudence upon inquiry.”</p> <p>The judge found “ that the marriage between Horace and the respondent Sadie was validated, and the issue thereof legitimated, under the provisions of R. L. c. 151, § 6. ... In consequence the petitioner does not show title proper for registration, and there must be an entry of petition dismissed. So ordered.”</p> <p>The petitioner appealed.</p> <p>R. L. c. 151, § 6, is as follows: “If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents.”</p> <p>Section 10 of the same chapter is as follows: “A marriage shall be void in this Commonwealth if the parties, both being resident here and intending to return and reside here, in order to evade any of the provisions of the first five sections of this chapter go into another State or country and there have their marriage solemnized, and return and reside here.”</p> <p>Section 4 of that chapter is as follows: “A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter one hundred and fifty-two [relating to divorce]], shall be void.”</p> <p>The case was submitted on briefs.</p>

<p>Appeal from a decree of the Probate Court of Suffolk County appointing A. Francis Hayden administrator de bonis non with the will annexed of Anne Fagan, late of Boston, in place of James A. Keown, who had been removed as such administrator.</p> <p>The motion “to amend the claim of appeal,” which is described in the opinion, was heard by Carroll, J., who denied the motion and made an order that a final decree be entered dismissing the appeal in accordance with a previous order of the Supreme Judicial Court. The appellant appealed from the order.</p> <p>The appellant filed a motion for a stay of proceedings, which was denied by Carroll, J., on May 28,1918. On the same day the single justice made a final decree appointing A. Francis Hayden administrator with the will annexed of the estate of Anne Fagan not already administered and remanding the case to the Probate Court for further proceedings.</p> <p>On the same day the appellant filed the following appeal: “Now comes James A. Keown, administrator in the above-entitled case and attorney for Kate White et ais., certain Wisconsin legatees, and appeals to the Supreme Judicial Court for the Commonwealth of Massachusetts, from a final decree entered on May 24, 1918, dismissing the appeal of the administrator in the said estate.”</p>

<p>Equity Jurisdiction, To enable corporation to obtain property retained by former officers, Remedy at law. Fraternal Beneficiary Corporation. Corporation. Mandamus. Equity Pleading and Practice, Findings of master.</p> <p>In a suit in equity by a fraternal beneficiary corporation against certain of its members, who had been its officers and who contended that they still were its officers, to compel them to deliver to the plaintiff its books, records, money and other property, the plaintiff contended that new officers, who had superseded the defendants, had been elected at the annual meeting of the corporation. The constitution of the corporation provided "that at the last meeting of the year the President shall appoint a provisional commission or Election Committee . . . , which Committee shall have charge of the Election. . . .” The constitution also provided that “in case of necessity the assembly can elect a special temporary commission or committee for a particular subject.” A bylaw provided that “the President shall be given full power at any time and at different meetings, whenever the minds are excited and to avoid disturbance, to dissolve and adjourn for another date the meeting.” At a last meeting of the year, fully attended, an election committee was appointed and reported that no election of a physician could be had because the applications did not comply with the by-laws, and announced that there would be an “election of the officers only. The members then rose and began to shout and the meeting got tempestuous.” The president of the election committee finally stated," “I postpone the election to some other day and there will be a notice of it.” No motion to adjourn was made and no motion was put to the meeting. Fifty-six members left the meeting, and those who were left, who constituted more than a majority of the total membership of the corporation, proceeded to organize, elected a temporary chairman and an election committee, and thereafter the members present elected all the officers and the physician. Held, that the meeting was neither dissolved nor adjourned nor legally postponed, and that a case of necessity arose which authorized the election of a ' “special temporary commission or committee for a particular subject,” that the election was a valid one and that the defendants must deliver the books, records, money and property to the plaintiff.</p> <p>In the case above described a master found “that the duly appointed Election Committee did not have charge of the election . . . and that the Society as a whole was not present at this said election, and therefore the choice of officers and physician made should not stand.” Held, that this so called finding of the master was not wholly a finding of fact, but included an erroneous ruling of law and could not affect the rights of the plaintiff.</p> <p>In the same case it was held that, although mandamus is an appropriate remedy by which to determine the validity of an election of the officers of a corporation and ordinarily a court of equity is without jurisdiction to determine such questions, yet in the present case the corporation sought to recover the possession of its property from the defendants and the validity of the election was merely incidental to the relief sought, and accordingly that the court had jurisdiction in equity to order the defendants to deliver the books, records, money and other property to the present officers of the plaintiff.</p>

<p>Contract for a balance alleged to be due under a contract in writing for altering a barn and making it over into a dwelling house and for extras. Writ dated April 10, 1916.</p> <p>In the Superior Court the case was heard by Morion, J. After an action had been brought and after entry of the writ in court the parties entered into an agreement in writing signed by them and acknowledged before a justice of the peace to submit the matters in controversy to three arbitrators chosen by the parties, the award of the arbitrators to be final. This agreement for arbitration, a copy of which was annexed to and was made a part of the judge’s report, purported and was intended to be under R. L. c. 194. It was dated September 7, 1917.</p> <p>Acting under this- agreement the arbitrators met and viewed the premises over which the dispute arose, heard the evidence of the contending parties and made an award in writing within one year as provided by the statute, which award was transmitted to the clerk of the Superior Court of the county of Middlesex.</p> <p>The defendant refused to abide by this award. The plaintiff on April 26, 1918, made a motion to have the award confirmed. The judge refused to confirm the award or to enter judgment in accordance with the terms of the award and denied the motion, all upon the ground that the arbitrators had not been appointed under a rule of the court but merely by agreement of the parties. The judge reported the case for. determination by this court. If the Superior Court had jurisdiction to enter judgment on the award, the award was to be confirmed and judgment was to be entered in accordance therewith. If the Superior Court had no such jurisdiction, the parties were to be left to their rights at law or in equity.</p>

<p>Petition, filed on November 13, 1918, for a writ of mandamus addressed to the judge of the Probate Court for the county of Franklin, commanding him to disregard or to dismiss a claim of appeal from an order made by him committing Kostanti Nadolny, a minor child, to the Massachusetts School for the Feeble-Minded.</p> <p>The case was heard by Crosby, J., who ruled that Kostanti Nadolny had no legal right of appeal from the finding and order of the judge of the Probate Court, that his rights, constitutional and otherwise, were not infringed because such appeal does not lie, but that his liberty and all his rights were fully safeguarded by the right given him under the statutes (St. 1909, c. 504, §§ 78-80, as amended by St. 1916, c. 122, §§ 3-5), to institute judicial proceedings for his release, if he was wrongfully committed or unlawfully restrained of his liberty. The single justice ordered that the writ should issue as prayed for and, at the request of the respondent and with the consent of the petitioner, reported the case upon the petition and answer for determination by the full court.</p>

Contract under R. L. c. 81, § 31, to recover $415 for hospital treatment and ether, dressings and X-ray furnished by the plaintiff to one Carlo Capelli, alleged to be a pauper in the town of Milton, the defendant. Writ dated November 11, 1916. In the Superior Court the case was heard without a jury by Dana, J., on an agreed statement of facts, containing the facts that are stated in the opinion.

<p>Contract, Implied, What constitutes. Evidence, Presumptions and burden of proof.</p> <p>Although a man is under no legal obligation to support the mother of his wife, yet if at the request of his wife’s brother he receives his mother-in-law into his family and maintains and cares for her there, the law will not imply a contract that he is to be paid by such brother-in-law for her support in the absence of evidence that the brother-in-law knew or reasonably ought to have understood that he was to be charged for such maintenance.</p> <p>In an action of contract against the executor of the will of the plaintiff's brother-in-law to recover for the support of the plaintiff’s mother-in-law in the plaintiff’s house, the burden of proof is on the plaintiff to show a contract express or implied on the part of the testator to pay for such support.</p> <p>Where in such an action it appeared that during all the years of such support the relations between the testator and the plaintiff and his family were harmonious and friendly, that the plaintiff’s mother-in-law was old and infirm and needed much care and attention, which was given her by her daughter, the plaintiff’s wife, and by a young man who lived in the house, that the testator in every month for nine years gave his mother $20, which in each month was turned over to the plaintiff and was accepted by him without any suggestion that he was dissatisfied with the arrangement, that during all these years the plaintiff never intimated to the testator that he expected or ought to be paid a larger sum and did not present any claim against the defendant executor until nearly a year and a half after the testator’s death, and where an auditor on this and other evidence found for the defendant, it was held that it was right for the presiding judge to order a verdict for the defendant.</p>

Bill in equity, filed on June 5, 1917, by three children of a brother of the half blood of Thomas Mullaney, late of Boston, testate,… Held: in a decision reported in 230 Mass. 245, that the words of the residuary clause of the will of Thomas Mullaney “in equal shares to my several brothers and my sister, to the exclusion of my brother Patrick Mullaney,” who was a brother of the whole blood, designated the testator’s brothers and sister of the whole blood to the exclusion…

<p>Indictment, found and returned in the county of Suffolk on June 9, 1917, in several counts charging the defendant with larceny by stealing money amounting to $5,179.39, the property of John C. Annable and six other persons named, as described in the opinion.</p> <p>In the Superior Court the defendant was tried before Keating, J. At the close of the evidence for the Commonwealth, the substance of which is described in the opinion, the defendant rested upon the Commonwealth’s case and offered no evidence. The defendant asked the judge to order a verdict of not guilty. The judge refused this request and submitted the case to the jury, who returned a verdict of guilty. At the request of the defendant the judge reported the case for determination by this court. If the refusal to order a verdict for the defendant was correct, the verdict was to stand. If the judge should have ordered such a verdict, the verdict was to be set aside and a verdict of not guilty was to be ordered.</p>

<p>Two actions of tort, the first by. a married woman for personal injuries sustained on September 2, 1913, by reason of a defective staircase in a two-tenement house belonging to the defendants at 15 Indiana Avenue in Somerville, which the plaintiff was visiting at the invitation of the defendants, and the second action by the husband of the plaintiff in the first action for consequential damages sustained by reason of her injuries. Writs dated November 11, 1914.</p> <p>In the Superior Court the cases were tried together before Hardy, J. The material evidence on the question of liability is described in the opinion. At the close of the evidence the judge, at the request of the defendants, ruled that on .the evidence the plaintiffs were not entitled to recover and ordered verdicts for the defendants. The plaintiffs alleged exceptions, which, after the death of Hardy, J., were allowed by Jenney, J., under R. L. c. 173, § 108.</p>

Tort by the administrator of the estate of Joseph Canavan for the conscious suffering and death of the plaintiff’s intestate, a boy seven years and eight months old, from being struck by a motor car of the defendant alleged to have been operated negligently by the defendant or his agents and servants on December 13,1916, when the plaintiff’s intestate was walking on Dorchester Avenue in the part of Boston called Dorchester and was about half way over the cross walk on Edison…

Tort for personal injuries sustained by the plaintiff on June 8, 1916, when the plaintiff was a passenger on a street railway car of the defendant at or near the corner of Savin Hill Avenue and Dorchester Avenue in the part of Boston called Dorchester, the declaration being quoted in the opinion. Writ dated June 19,1916.

<p>Equity Jurisdiction, Bill to redeem from mortgage.</p> <p>An attempted foreclosure under a power of sale of a mortgage of real estate was defective by reason of insufficient notice of the sale, and the mortgagor brought a suit in equity to redeem the real estate from the mortgage, in which a decree was made that the plaintiff be allowed to redeem upon paying to the holder of the mortgage within forty-five days the principal and interest and other sums due under the mortgage. The mortgagor wholly failed to pay the amount found to be due on the mortgage and thereupon a final decree was entered dismissing 'the bill to redeem. Many years thereafter the mortgagor brought a bill in equity to obtain a conveyance to him of the property on the alleged ground that there had been no valid foreclosure, and it was held that the mortgagor by electing to bring a bill to redeem had waived any claim of right to have the property sold under the power in the mortgage, if he ever had had any such right, and that the final decree dismissing the mortgagor’s bill to redeem after he had failed to pay the amounts due within the time prescribed effectually foreclosed the mortgage and that thereafter the mortgagor’s right to redeem was lost so that he had no interest in the property, and accordingly that a demurrer to the bill must be sustained.</p>

<p>Two actions of tort, the first for personal injuries sustained on August 8,1916, when the plaintiff, a girl about ten years of age, was alighting from a street railway car on North Main Street in Brockton and was knocked down by a motorcycle ridden by an employee of the defendant acting within the scope of his employment, and the second by the father of the plaintiff in the first case for consequential damages. Writs dated July 16, 1917.</p> <p>In the Superior Court the cases were tried together before Chase, J. “The defendant admitted liability and filed an answer to that effect, and the case proceeded on the question of damages only.” The material evidence and also an exception to the admission of certain evidence are described in the opinion. At the close of all the evidence, the defendant asked the judge to rule as follows:</p> <p>“The plaintiff is not entitled to recover for any injuries resulting from her fall on March 5,1917.”</p> <p>The judge refused to make this ruling and the defendant excepted.</p> <p>Under instructions to which no exceptions were taken the judge submitted to the jury the following questions:</p> <p>“1. Was the second breaking of the plaintiff’s leg the result of the accident without the intervention of any negligence on her part, or any independent cause?” The jury answered, “Yes.”</p> <p>“2. If your answer to the preceding question is in the affirmative, what sum have you allowed in your verdict as damages for the second breaking of the leg? ” The jury answered, "$500.”</p> <p>The jury returned a verdict for the plaintiff in the first case in the sum of $6,050, and a verdict for the plaintiff in the second case in the sum of $480. The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Public Service Commission. Bay State Street Railway. Constitutional Law. Receiver. Equity Pleading and Practice, Parties. Fall River.</p> <p>In a suit in equity under St. 1913, c. 784, § 27, by the receiver of the property of the Bay State Street Railway Company to review, annul, modify or amend an order of the public service commission cancelling a schedule of fares filed by the plaintiff and ordering him to file a new schedule in substantial compliance with certain rates, fares and charges fixed by the commission, it appeared that, owing to the existence of a transitional period due to the great war and the unusual increases in all the costs of operation, neither the schedule of fares proposed by the plaintiff nor that established by the order of the public service commission would yield revenue sufficient to meet the fixed charges of operation and of interest, allow the setting apart of any substantial or adequate sum for depreciation and pay any dividend upon the fair value of the property or the amount of honest investment. The schedule proposed by the plaintiff was in substance to do away with tickets, to establish city zones with a uniform ten cent fare and to divide the country lines into zones about two miles in length with a minimum fare of ten cents for two zones and five cents for each succeeding zone. The order of the commission authorized for a brief trial period an increase in rates, which in the opinion of the commissioners seemed likely to produce a larger actual gain in receipts than the fares proposed by the receiver and which would result in less serious damage to the community, leaving the future to be dealt with in a manner to be indicated thereafter. For the trial period the commission fixed the fares on city lines at seven cents, to be made available to the public only through the purchase of tickets or tokens at the rate of five for thirty-five cents, with the proviso that cash fares should be ten cents each. On the country lines the commission approved for the trial period the schedule of the receiver except that the receiver had the option of making the minimum for a single zone five cents in cash or of following the plan fixed for the cities of selling tickets at the rate of five for thirty-five cents. The commission ordered that the new schedule should be made effective for a trial period of two months, and that, if at the end of that time it had in combination with any other factors that might exist produced an increase in gross earnings of fifteen per cent or more, the experiment should be tried for two months longer, in the hope that the situation might be improved further by action of the General Court or by a change in economic conditions. Held, that it could not be said that the rates established by the public service commission were plainly unreasonable to the extent of affording less revenue to the receiver than the rate proposed in his schedule, and that the period fixed for the experiment, being four months at most and perhaps only two, could not be said to be excessive.</p> <p>In the case above described it also was held that the order fixing the city fare at seven cents but providing that the public could avail themselves of this rate only by a purchase of at least five tickets or tokens at one time was authorized by the provisions of St. 1913, c. 784, and was just and reasonable.</p> <p>In the same case it was held that the order of the public service commission did not violate any constitutional right of the receiver or of the Bay State Street Railway Company secured by arts. 10, 12 of the Declaration of Rights or by the Fourteenth Amendment to the Constitution of the United States.</p> <p>In the case above described it was pointed out that the decision was confined to the facts disclosed by the record, and that it was not necessary to consider whether circumstances might arise where the public service commission would be warranted, or whether under the present circumstances they might be warranted, in establishing rates likely to yield a revenue less than the rates proposed by the receiver or less than a fair interest on the capital honestly and prudently invested.</p> <p>In the case above described it also was held that the city of Fall River was not a proper party to the suit, the public interests being entrusted to the Attorney . General.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 7, 1919, by the city of Fall River against the members of the public service commission and the receiver of the property of the Bay State Street Railway Company under St. 1913, c. 784, § 27, alleging that the order of the public service commission, relating to the operation by the defendant receiver of the city lines of the Bay State Street Railway Company, “requiring the purchase of five tickets in order to obtain a seven cent fare and allowing a fare of ten cents to be charged when cash is paid is unreasonable, excessive and unlawful; that it limits and lessens the legal tender character of the coin of the United States; and that it violates the provisions both of the United States statutes and of the Constitution of the United States relating to the making of legal tender, to the issuing of coin and regulating the value thereof;” and praying “that the order allowing or requiring said charge of a fare of ten cents when the payment is made in cash and requiring the purchase of five tickets to ride at the rate of the seven cent fare shall be stayed, pending a final decision; that the order shall be reviewed, amended, modified and annulled, so that the unlawful part of said order may not be enforced; and that the court grant such further relief as may be meet and just.”</p> <p>The case came on to be heard before Be Courcy, J., who at the request of the parties reserved it upon the bill and answers for determination by the full court.</p> <p>U. S. Rev. Sts. § 3587, is as follows: “The minor coins of the United States shall be a legal tender, at their nominal value for any amount not exceeding twenty-five cents in any one payment.”</p>

<p>Bill in equity, filed on April 24, 1917, by the First African Methodist Episcopal Society in the City of Boston, and by nine individual plaintiffs alleged to have been elected the trustees of that society at its annual meeting held on April 13, 1917, against certain former trustees of that society, concluding with the following prayers:</p> <p>“ 1. That a temporary and a perpetual injunction issue restraining the defendants and all persons acting for or in association with them from interfering with the due and orderly conduct of services, proceedings and business of the plaintiff corporation and the exercise of the duties of trustees of said society by the plaintiff trustees, and from pretending or asserting the right to hold said office of trustees.</p> <p>“2. That the court declare the individual plaintiffs to be rightfully in office as trustees of said society and empowered to perform the duties of said office.</p> <p>“3. For such other and further remedy as the court shall deem meet.”</p> <p>The defendants’ answer, after setting forth various matters of defence, concluded as follows:</p> <p>“The defendants submit:</p> <p>“That the said plaintiffs, or either or any of them, are not entitled to any relief in equity as prayed for and that the said bill should be dismissed with costs to the defendants.”</p> <p>In the Superior Court' the case was heard by Jenney, J., the evidence being reported by a commissioner appointed under Equity Rule 35. The judge made the findings that are stated in the opinion. By his order the following final decree was entered:</p> <p>“1. That the individual plaintiffs are the legal trustees of the plaintiff corporation, rightfully in office by virtue of their election at the annual meeting of the plaintiff corporation, held April 13, 1917.</p> <p>“2. That the defendants, and each of them, be and hereby are enjoined from interfering, under any claim to the office of trustee, with the services, proceedings, and business of the plaintiff corporation, or with the exercise by the individual plaintiffs of the powers and duties of trustees of said corporation, and from pretending to said office of trustees; all under any election or other proceedings of the plaintiff corporation heretofore held.</p> <p>“3. And it is further ordered, adjudged and decreed that the defendants pay to the plaintiffs thirty-four and eighty-four hundredths dollars, costs of court, and that execution issue against said defendants and in favor of the plaintiffs for said amount.”</p> <p>The defendants appealed.</p>

<p>Carrier, Of goods: liability for baggage. Negligence, Railroad, Gross. Words, “Ordinary handling.”</p> <p>In an action against a railroad corporation for damage done to a harp of the plaintiff checked as baggage on a train of the defendant on which the plaintiff was a passenger, it could have been found that the harp when checked was in good condition, that the case containing the harp had painted on each side in very large conspicuous letters the words “Fragile, handle with care,” that on the top was written in large black pencil letters “This side up” and on the bottom was written in like letters "This side down,” and that when delivered at the place of destination the harp was in a " badly damaged” condition. The defendant’s tariff schedule filed with the proper State and federal authorities, of which the plaintiff was charged with notice, contained a provision that “ cases or other receptacles marked . . . ‘fragile’or in any other manner indicating that the contents are of a fragile nature and likely to be damaged by ordinary handling will not be accepted for transportation, except at owner’s risk.” The plaintiff at the time of checking her harp signed an agreement fixing]ts valuation for the purposes of the transportation as not exceeding $25 and agreeing that the railroad corporation should “not be liable beyond said valuation on account of any claim for loss or damage occurring to said property while being so transported.” The plaintiff testified that after she had paid the charges and the case containing the harp had been checked she “saw the baggage man in the rear' of the baggage room take my harp on a small truck and throw it, deliberately throw it off like he would a trunk.” Held, that the provision of the tariff by which the plaintiff was bound did not, and could not, exonerate the defendant from liability for damage to the harp through negligence of the defendant’s employees, and that the plaintiff was entitled to go to the jury on the question of the defendant’s negligence, which could have been found to be gross negligence.</p> <p>In the case above described it also was held that the plaintiff was bound by her valuation of $25 and her agreement that the defendant’s liability should be limited to this amount.</p> <p>In the same case it also was said that in the phrase "likely to be damaged by ordinary handling,” contained in the provision above quoted from the defendant’s tariff schedule, the words “ordinary handling” meant nothing more than the ordinary wear and tear necessarily incidental to the transportation of such articles where reasonable care is used by the carrier.</p>

<p>Municipal Corporations, Officers and Agents. Bond. Lowell. Interest.</p> <p>The treasurer and collector of taxes of the city of Lowell, who under St. 1911, c. 645, § 46, and previously under R. L. c. 25, § 72, c. 26, § 2, in each year has given a bond with sureties for the faithful performance of his duties, performs his full duty when he accounts for all moneys that have come to him as treasurer or collector of taxes, including any accumulation by way of interest, and be is not required to put out the money of the city at interest.</p> <p>Accordingly he and the sureties on his bonds are not liable because he deposited funds of the city in a trust company without making any express agreement as to the amount of interest to be paid on the daily balance of the account and without any inquiry “as to how or at what rate it was computed,” but accepted the amount of interest credited on the account and received no interest on a deposit made by him called a “temporary loan account.”</p> <p>There is nothing in the general law nor in the charter of the city of Lowell that requires the treasurer and tax collector of that city to call for bids from banks and trust companies on municipal deposits before depositing money of the city in a trust company.</p>

Tort for personal injuries sustained on June 6, 1916, at about half past eight o’clock in the evening when the plaintiff was riding a motorcycle on the main county road leading from Harwich to Yarmouth in the part of Dennis known as West Dennis and came into collision with a four wheeled farm wagon owned and driven by the defendant and alleged to have been unlawfully on the highway without any light or lights thereon. Writ dated August 14, 1916.

<p>Tort for consequential damages arising from personal injuries sustained by the plaintiff’s minor son Joseph McGreevey on December 24, 1908, by reason of the negligence of the defendant’s servants when such minor son of the plaintiff was a passenger on an electric street railway car operated by the defendant, the plaintiff’s said son having reached the age of twenty-one years on March 8,1914. Writ dated June 18,1914.</p> <p>In the Superior Court the case was tried before McLaughlin, J. There was evidence introduced by the plaintiff tending to show negligence on the part of the defendant and due care on the part of the plaintiff’s son. There also was evidence introduced by the defendant tending to show that it was free from any negligence and that the plaintiff’s son was not in the exercise of due care. It appeared in evidence that the plaintiff as next friend for his son Joseph McGreevey brought an action in the name of his son against the defendant growing out of the same accident. It appeared that the writ in the case of the son against the defendant was dated May 22, 1912, and that that case was tried before a jury and a verdict and judgment were secured by the son and were paid by the defendant in 1913.</p> <p>After the close of the evidence the counsel for the plaintiff asked the judge “to rule as a matter of law that the only thing the plaintiff has to do in this case' is to establish the amount of damage; that the liability is fixed by the previous trial in the case of Joseph McGreevey by his next friend, the present plaintiff, against the defendant.” The judge refused to make this ruling.</p> <p>At the close of the judge’s charge the counsel for the plaintiff asked the judge to rule that there was no evidence that any money had been paid over to Joseph until he attained his majority. The judge refused to make this ruling.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The plaintiff excepted to the last sentence in the following part of the argument of the defendant’s counsel: “In the closing argument of the defendant, the defendant’s counsel repeated in substance what has already been set forth from his opening argument in explanation of what this suit is for and then added the following statement —‘ I claim, on the facts that this suit by the father is an afterthought. Generally a suit by the father for injuries to the son, just like a suit by a husband for injuries to his wife, is brought at the same time with the principal suit, that is with the suit brought by the son, or at all events is brought in time so that both suits are tried together. But here, although the counsel in the two suits is the same, the suit for the son was brought in May, 1912, was tried in 1913, and judgment recovered for a large sum, some $4,600, while the accident itself on which the suit was founded happened way back in December, 1908, yet all this time the father brought no suit. He never did bring suit until the son’s suit was all over and the judgment paid by the defendant and until after the son had become of age in March, 1914. The writ in this suit was brought in June, 1914, five and a half years after this accident happened. You should consider whether, if the father was really injured in any substantial way by the loss of the boy’s earnings, as he now claims, he would not have brought a suit years ago. Is it not a fair inference that the father did not really lose much on account of this boy’s injury as a matter of fact, and that he is exaggerating the amount that the boy received a week from, his brother, and the length of time that this accident prevented the boy from working? It looks very much as if, because the son Joseph had come into court and got a big fist full of money, easy money, that the father, meaning the plaintiff,, thought he would like to try his hand and see if he could not do the same thing, and that is why this case is brought.”</p>

<p>Contract to recover the freight charges due on successive carloads of oranges shipped by the defendant from California on various dates from August 2 to September 15, 1915, and consigned to one Crimmins, under the name M. V. Crimmins Company, under bills of lading containing the stipulation quoted in the opinion. Writ dated October 29, 1915.</p> <p>In the Superior Court the case was heard by Cox, J., without a jury, upon an agreed statement of facts and the testimony of one Baker, an employee of the plaintiff. The evidence is described in the opinion. The judge found that Baker must have known that Crimmins claimed to be acting as agent but that he did not know for whom, but ruled as a matter of law that this did not affect his findings and rulings upon the agreed statement of facts. Upon the agreed statement of facts the judge found and ruled that the plaintiff was entitled to recover the sum of $4,486.50, and, at the request of the parties, reported the case for determination by this court upon the question of whether his findings and rulings were ■correct. If they were, judgment was to be entered upon his finding; if they were wrong, judgment was to be entered for the plaintiff in the sum of $448.56, the amount of the freight charges on the last carload admitted to be due, together with interest from the date of the writ.</p>

<p>Negligence, Of one controlling real estate. Landlord and Tenant. Snow and Ice. Notice.</p> <p>Where an entire building is demised by a lease in writing and the tenant covenants “ to do all the necessary repairs,” and where such tenant puts up and maintains a wooden canopy over a doorway or entrance to a basement store without any gutter or conductor whereby rain water may be diverted from the sidewalk of the street and the formation of ice thereon prevented, if a traveller on the sidewalk is injured by slipping and falling on a ridge of ice so formed, such tenant is liable for the injuries thus caused if the person injured gave notice of the “time, place and cause of the accident” as required by St. 1908, c. 305, as amended.</p> <p>A notice of the time, place and cause of an accident occasioned by snow or ice given under the requirement of St. 1908, c. 305, as amended, addressed “to the person, persons or corporation in control of the premises ” described, if delivered to the person in control, is a good notice to that person, although his name is not mentioned in the writing.</p>

<p>Statute, Repeal. Railroad. Union Station at Worcester.</p> <p>St. 1906, c. 463, entitled an act relative to railroad corporations and street railway companies, does not repeal either expressly or by implication the special statute, St. 1905, c. 422, providing for a new union passenger station in Worcester, and therefore a petition for a writ of mandamus addressed to the public service commissioners, commanding them to file their award to determine the rent to be paid for use of the Union Station in Worcester with the Supreme Judicial Court for revision under St. 1906, c. 463, Part II, § 140, must be dismissed.</p>

<p>Negligence, Street railway, Licensee, Invited person. Agency, Scope of authority. Evidence, Competency.</p> <p>In an action against a corporation operating street railways and an elevated railway, for personal injuries sustained when the plaintiff was passing through a car of an elevated train from the platform on one side of an elevated station to the platform on the other side, it appeared that there were stairways and an overhead bridge leading from the platform on one side of the station to the platform on the other side but that the plaintiff did not use them because it was more convenient to wait until an elevated train came in and use it for a bridge and that, while she was attempting to cross in this manner, her leg was caught by the closing of a door of the car through which she was passing and she was thrown down and injured. Held, that the plaintiff while passing through the car was at most a licensee, to whom the defendant owed no duty except to refrain from wilful or wanton misconduct, of which there was no evidence.</p> <p>In the case above described the presiding judge excluded evidence offered by the plaintiff to show that on a previous occasion she had talked with a guard of the defendant, who told “her to wait until a train came in and then to go through the train,” and that this guard had “assisted her to do so and told her that that was perfectly all right.” Held, that the exclusion was right, as it did not appear that the guard had been given authority to promulgate any general order relating to the use of the station by passengers, and also because what had been said on a former occasion did not amount to a present invitation to use the train for a bridge.</p>

<p>Bill in equity, filed in the Superior Court on May 24,1917, by the Metropolitan Trust Company, a corporation having its principal office in Boston, against the Federal Trust Company, also a corporation having its principal office in Boston, Arthur E. Abbott, formerly employed by the defendant as a bookkeeper, and Albert Eugene Wood, formerly employed as a bookkeeper by the plaintiff, alleging that by conspiracy, fraud and falsification of accounts by the defendants Abbott and Wood, the plaintiff was caused to pay to the defendant corporation the sum of $15,000, which amount previously had been embezzled from the defendant corporation by the defendant Abbott, praying (1) for judgment against the defendants Abbott and Wood in the amount of $15,000, (2) for judgment against the defendant corporation in the amount of $15,000 or in such other amount as might be found to be due to the plaintiff frorn/that defendant, and (3) to be subrogated to any rights of the defendant corporation against any funds or property of the defendant Abbott attached by the defendant corporation.</p> <p>The defendants Abbott and Wood having been defaulted, an order was made that the bill be taken as confessed against each of those defendants.</p> <p>In the Superior Court the case was heard by Wait, J., the evidence being reported by a commissioner appointed under Equity Rule 35. The judge made thirty-seven findings of fact, including those which are stated in the opinion. The judge found “that neither party was negligent; that both trust companies acted in good faith; and, if material, that the plaintiff knew of the rule of the clearing house quoted in the answer.” This rule is quoted in the opinion.</p> <p>By order of the judge a final decree was entered against the defendants Abbott and Wood and also ordering the defendant Federal Trust Company to pay to the plaintiff the sum of $16,050 and interest from the entry of the decree. The defendant Federal Trust Company appealed.</p>

<p>Tort for personal injuries and for damage done to the plaintiff’s motor car on December 8, 1916, by the negligence of the defendant in the operation of his motor car on St. Alphonsus Street in Boston, whereby a motor truck belonging to copartners known as Miller and Lakin was forced to come into collision with the plaintiff’s car. Writ dated April 30, 1917.</p> <p>In the Superior Court the case was tried before White, J. The evidence admitted without objection, and also the evidence admitted and excluded by the judge subject to exception, are described in the opinion. The jury returned a verdict for the plaintiff in the sum of $875; and the defendant alleged exceptions to the admission and exclusion of evidence as described in the opinion and to the portion of the judge’s charge, quoted in the opinion, in which the judge said that an action could not be brought jointly against the defendant and Miller and Lakin.</p>

<p>TWO ACTIONS, OF CONTRACT and CONTRACT AND TORT, the first action by the American Historical Society, Incorporated, against Elizabeth H. Storer, upon a contract in writing by which the plaintiff was to execute for the defendant a steel plate portrait, dark background, of Robert Boyd Storer and print and insert it in a work called the “Memorial Encyclopedia of the State of Massachusetts,” for which the defendant promised to pay the plaintiff or order the sum of $300, payment to be made upon submission of artist’s proof, the declaration alleging that the plaintiff had performed fully its part of the contract and that the defendant owed it the sum of $300, with a second count alleging a promise of the defendant to pay the plaintiff $38 for the volume entitled “Memorial Encyclopedia of the State of Massachusetts,” that the volume was delivered and that the defendant failed to pay for it; and the second action, of contract or tort, by the defendant in the first action against the plaintiff in that action seeking to recover back the amount of $400 paid by her upon a contract in writing for the execution of the plates fm* printing in colors the Storer coat of arms to be inserted in the “Memorial Encyclopedia of the State of Massachusetts,” alleging failure of consideration and fraudulent misrepresentations of the agents of the plaintiff in the first case. Writs dated respectively July 20, 1917, and October 18, 1917.</p> <p>The two contracts signed by the defendant in the first case, copies of which were annexed to the declaration in that case, were as follows:</p> <p>“Exhibit A.</p> <p>Memorial Encyclopedia The American</p> <p>of the Historical Society, Inc. '</p> <p>State of Massachusetts New York</p> <p>William Richard Cutter, A. M., Editor.</p> <p>$300.00 March 21, 1917.</p> <p>Please execute for me a Steel Plate Portrait (dark back ground), of Robert Boyd Storer to be inserted in the Memorial Encyclopedia of the State of Massachusetts, for which I hereby agree to pay to you or your order the sum of Three Hundred Dollars, payment to be made, upon submission of Artist’s proof. After publication said Steel Plate and ten extra proofs are to be delivered at my residence or place of business. This contract does not include the books previously subscribed for. It is further understood by me that no agreement will be recognized by the Company unless embodied in this contract, and that this contract is not subject to countermand. I also agree to furnish a photograph or picture, within ten days, from which said portrait is to be made, or forfeit one-half the above amount as liquidated damages.</p> <p>Miss Elizabeth Hoar Storer,</p> <p>Post Office, 63 Garden St., Cambridge, Mass.”</p> <p>“Exhibit B.”</p> <p>Memorial Encyclopedia of the State of Massachusetts Edition de Luxe</p> <p>William Richard Cutter, a. m., Editor</p> <p>The American Historical Society, (Inc.)</p> <p>New York</p> <p>Please enter my name as a subscriber to your forthcoming work entitled, ‘Memorial Encyclopedia of the State of Massachusetts/ for which I agree to pay to you or your order $38.00 (Thirty-Eight Dollars), for one volume, payment to be made when said work is delivered to me at my residence. The work is to be issued in special De Luxe binding lettered in gold. No representations or guaranties have been made which are not herein expressed. I base this order on what is promised in this contract, and it is also understood by me that this contract is not subject to countermand. I also agree to correct the personal sketch when presented to me for that purpose.</p> <p>Elizabeth Hoar Storer</p> <p>Date Jan’y 10/1917 Post Office, Cambridge 63 Garden St.”</p> <p>On Stub: “ Given by Elizabeth Hoar Storer</p> <p>Taken by Frank J. Horn Order No. 34”</p> <p>In the Superior Court the cases were heard without a jury by Morton, J., who in the first case made the following findings and rulings:</p> <p>“The plaintiff sues upon two written contracts, copies of which are annexed to the declaration.</p> <p>“The answer sets up various fraudulent misrepresentations, and that the book was not in conformity with the contract.</p> <p>“I find that there were no fraudulent misrepresentations, and that those claimed to have been fraudulent were not relied upon as an inducement to sign the contract in suit.</p> <p>"The book contract provided for a ‘special De Luxe binding lettered in gold’ and that ‘no representations or guaranties have been made which are not herein expressed’ and that the defendant would correct the personal sketch of her father.</p> <p>“She was shown a copy of a ‘Baltimore Biography’ as a sample of the ‘De Luxe binding’ and approved of it.</p> <p>“The binding in question was as excellent as the binding of the ‘Baltimore Biography’ and was therefore' of the quality ‘De Luxe’ as understood and agreed upon by the parties. It was an encyclopedia as the term is to be construed with reference to the defendant’s knowledge of what the book was to contain. She knew that it was to contain only relatively few of the lives of those whom the publishers deemed to be representative men and accepted their standards without inquiries or objection.</p> <p>“The article as to her father was read to her, and she was given full opportunity to read it over and correct it. She signed her approval of it without reading it' herself.</p> <p>“The article, as well as other articles, contained careless errors in genealogy, typography and spelling, which made the book, so far as its contents were concerned, open to fair criticism.</p> <p>“But under the terms of the written contract there could be no implied warranty of the fitness of the book in these respects.</p> <p>“There was also some question whether Mr. Cutter actually performed the duties of personal oversight of an editor, although I find that he was the nominal editor.</p> <p>“ But I rule that under the written contract there was no implied guarantee that he should give such personal oversight, and find that there was no representation made to that effect as an inducement to sign the contract.</p> <p>“I find that no fraudulent misrepresentations were made to induce the defendant to sign the contract for the ‘ Steel Plate Portrait’; that the portrait was in accordance with the agreement; that the agreement was performed in all respects by the plaintiff</p> <p>.“I find for the plaintiff and assess damages in the sum of $353.21, including interest from the date of the writ.”</p> <p>In the second case the judge made the following findings and rulings:</p> <p>“The plaintiff signed a written contract to pay the defendant $400 for the execution of the necessary plates for printing in colors a ‘Storer’ coat of arms to be inserted in the ‘Memorial Encyclopedia of the State of Massachusetts,’ the amount to be paid upon the submission of artist’s proof; the plates and ten prints to be delivered to her after publication of the book. The plates were executed, proof submitted and approved by the plaintiff, inserted in the book and the plates and prints delivered to the plaintiff. She paid the amount of the contract by check; unsuccessfully attempted to stop payment thereof, and brought this suit to recover the amount, on the ground that she was induced to enter into the contract by various false representations.</p> <p>“I find that no false representations were made; that the defendant performed all the terms of the contract; that the book conformed to all the guarantees legally binding upon the defendant, for the reasons given in the cross action.</p> <p>“I find for the defendant.”</p> <p>The request for rulings made by Elizabeth H. Storer, the subscriber, and refused by the judge, which are referred to in the opinion, were as follows:</p> <p>“1. That the book was not supplied in conformity with the contract, it being</p> <p>(a) not special de luxe binding;</p> <p>(b) not reasonably fit for the purpose for which it was intended;</p> <p>(c) not an encyclopedia;</p> <p>(d) not edited by Cutter.</p> <p>“2. That the plate was ordered for insertion in the book, the characteristics of which do not in fact comply with the understanding.</p> <p>“3. The defendant is entitled to a verdict in the action on the order for the plate.</p> <p>“4. The contract for the book was obtained by fraudulent misrepresentation (a) of its character (b) of the editorial supervision (c) of the standing of the company in relation to the Massachusetts Historical Society.</p> <p>“5. Judgment should be (a) for the defendant on each count of the first case and (b) for the plaintiff in the second case.”</p> <p>The subscriber offered in evidence the Storer genealogy prepared under Cutter’s editorial supervision for the Lewis Company in 1910, for the purpose of showing statements therein upon genealogical points conflicting with those in the sketch here in question. The court excluded the evidence and the subscriber excepted.</p> <p>In accordance with the above stated findings and rulings and refusals to rule the judge made general findings, in the first case for the plaintiff in the sum of $353.21 and in the second case for the defendant. In each case the subscriber alleged exceptions.</p>

<p>Contract on a check of the defendant dated March 23, 1917, for $50.50 and on four promissory notes, each for $50, payable respectively on April 8, May 8, June 8 and July 8, 1917. Writ'in the First District Court of Essex dated July 11, 1917.</p> <p>On appeal to the Superior Court the case was tried before Dana, J. The evidence is described in the opinion. The check and notes sued upon were given under a contract of conditional sale of a motor truck, which was as follows:</p> <p>“Know all men by these presents</p> <p>"That I, Sarkis Martin, of Salem, County of and</p> <p>State of Massachusetts, have received and hired of Leroy P. Russell the following described automobile, to wit; 1917 Metz Truck, No. 39183, as is.</p> <p>“For the use of the above mentioned automobile, and as rent for the same, I have this day paid to the said Leroy P. Russell the sum of Two Hundred Dollars, and I do further promise to pay to him, or his legal representatives, the sum of $425.00 Dollars, with interest as stated in my eight promissory notes of even date, payable as follows: $50.00 Mar. 8, 1917; $50.00 Apr. 8, 1917; $50.00 May 8, 1917; $50.00 June 8, 1917; $50.00 July 8, 1917; $50.00 Aug. 8,1917; $50.00 Sept. 8,1917; $75. Oct. 8,1917; which I have executed and delivered to the said Leroy P. Russell as an evidence of the foregoing promise and as Collateral Security therefor, it being understood and agreed that when the full amount thereof or of any extension or renewal of any or all of said notes have been paid, said rent shall cease and the said automobile and the accessories thereon shall become .my absolute property, but until the full payment thereof as aforesaid, said automobile and the accessories thereon shall remain and be the property of the said Leroy P. Russell.</p> <p>“Provided, however, that I or my legal representatives may enjoy the use and possession of the said automobile until the breach of any of the conditions herein set forth.</p> <p>“And in the event of my failure to pay said rent as aforesaid, the said Leroy P. Russell or his legal representatives may, without being deemed guilty of any trespass or tort, and without thereby rendering himself, or themselves, liable to refund any sums received by him, or them, as rent as aforesaid, enter any house or place where the said automobile or the accessories may be, and take immediate possession of and remove said automobile and the accessories thereon therefrom.</p> <p>“And I further agree that so long as said rent shall be payable as aforesaid, I shall not waste or destroy the said goods and chattels, nor suffer them or any part thereof to be attached on mesne process, nor sell, mortgage or re-let said automobile without notice to Leroy P. Russell of my intention so to do, or in the event of my failure to pay said rent, or upon breach of any other of my covenants and agreements hereinbefore set forth, I will, on demand, return the said automobile to the said Leroy P. Russell.</p> <p>“Said car is leased as is, and no reference, representation, contract, agreement, promise, undertaking or understanding whatsoever not contained herein shall be binding upon the Lessor, or in any wise effect [sic] the validity of this contract or from any part thereof, but all statements made have been merged and set forth herein.</p> <p>“I further agree that there are no collateral agreements nor misunderstandings whatsoever modifying or affecting the terms of the within lease, or my liabilities thereunder, and that there are no set-offs, counter-claims nor defenses thereto.</p> <p>“Witness my hand and seal this Eighth day of February, 1917.</p> <p>Sarkis Martin,</p> <p>134J^ Boston St., Salem, Mass.”</p> <p>The plaintiff brought an action of replevin for the motor truck, as stated in the opinion. The date of the writ of replevin was July 11, 1917, the same as the date of the writ in this action. If material to the determination of this case, it was agreed, that the replevin writ was served on July 13, 1917, at forty minutes past nine o’clock in the morning and that the writ in the present case was served upon the trustee in this action at twenty-eight minutes past ten o’clock in the morning on July 13, 1917, and upon the defendant on July 14, 1917. In the action of replevin judgment was entered in the First District Court of Essex on December 24, 1917. No appeal was taken therefrom.</p> <p>At the close of the evidence the defendant made a motion that the judge should order a verdict for him. The judge denied the motion, and found for the plaintiff in the sum of $269.70 and costs, and by agreement of the parties the judge reported the case for determination by this court, with a stipulation of the parties that, if upon the facts stated in the report the plaintiff was entitled to recover upon all the counts of his declaration, judgment should be entered for the plaintiff in the sum of $269.70 and costs. If not, judgment was to be entered for the plaintiff in such amount as might be found to be due, or for the defendant, as the case might be.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 13,1918, and amended on October 18,1918, and January 15,1919, by John F. Murray and John Frederick Murray, executors of the will of Catherine Murray, late of Cambridge, for instructions.</p> <p>In the bill as amended it was alleged that the estate of Catherine Murray, including both real and personal property, was of the total value of about $60,000 and that the personal property of her estate as determined by the Tax Commissioner for the assessment of a legacy or succession tax was $48,157.77.</p> <p>The will of Catherine Murray was as follows:</p> <p>“Be it known that I, Catherine Murray of Cambridge in the County of Middlesex and Commonwealth of Massachusetts, being in good health and of sound and disposing mind and memory but mindful of the uncertainty of human life do make publish and declare this my last will and testament, hereby revoking any and all wills by me at any time heretofore made.</p> <p>“1st. I designate and appoint my husband John F. Murray and my son John Frederick Murray executors of this my last will and testament and request that no surety or sureties be required upon their or either of their official bond in discharging said trust.</p> <p>“2nd. To my said husband John F. Murray I give'devise and bequeath all of my real estate of every name and description of which I may die seized, possessed or to which I may be entitled at the time of my decease for his support and comfort during the term of his natural life.</p> <p>“ 3rd. To my son, John Frederick Murray aforesaid, I give, and bequeath all of my personal estate of every name and kind of which I may die possessed or be entitled at the time of my decease.</p> <p>“4th. If my said husband does not outlive my said son leaving' any portion of the estate hereby devised him unexpended I devise and bequeath such unexpended portion to my son John Frederick Murray aforesaid and his heirs.</p> <p>“In case, however, that my husband does outlive my said son, said son leaving no' issue, in such event I give and bequeath any unexpended remainder of the estate hereby bequeathed my son to my husband aforesaid.</p> <p>"5th. But at the decease of both my said husband and son leaving no living issue, from any unexpended remainder of my estate hereby devised and bequeathed to said legatees I give and bequeathe five thousand (5000) dollars to the Roman Catholic Home for Orphans and Destitute Children now located on Harrison Avenue, Boston, Massachusetts.</p> <p>“6th. Any balance of said ‘unexpended remainder’ remaining after the payment of said sum of five thousand (5000) dollars I direct to be divided into two equal parts, and one of which said parts I direct shall be equally divided between my brother Bernard O’Reilly of Milwaukee, Wisconsin, and my sister Annie McKnight of Unity, Wisconsin, share and share alike.</p> <p>“The other part I direct shall be divided equally among the children of my brother, Patrick Smith, of my sister, Bridget Claire, of Margaret Murphy, all of New York, and James Smith of Waterbury, Connecticut, share and share alike.”</p> <p>Here followed the attesting clauses with the signature of the testatrix and those of the three attesting witnesses.</p> <p>The case was heard by Crosby, J., who reserved it upon the bill as amended and all the answers thereto and certain findings of fact made by him for determination by the full court.</p>

<p>Bill in equity, filed in the Superior Court on June 14, 1916, under R. L. c. 159, § 3, cl. 7, alleging a debt of $337.50 from the defendant Morrison to the plaintiff under a contract to work as an agent of the plaintiff, and also alleging that the defendant Morrison had brought an action against the defendant Bay State Street Railway Company, that an “ agreement for judgment has been made between said parties or an agreement for settlement in some form” and that the defendant Bay State Street Railway Company “has recognized itself liable to said John H. Morrison, in a sum sufficiently large to cover the amount of the plaintiff’s bill against said Morrison;” praying that the debt of Morrison to the plaintiff might be satisfied out of such claim against the defendant Bay State Street Railway Company.</p> <p>The case was referred to a master, who filed a report containing the findings that are described and referred to in the opinion. The case was heard upon the master’s report by Jenney, J., who found the facts to be as stated in the report of the master and made an interlocutory decree that the master’s report be confirmed. Later by order of the same judge a final decree was entered ordering that the plaintiff’s bill be dismissed. The plaintiff appealed.</p>

<p> Revere Beach Reservation. Parks and Parkways. </p> <p>The boulevard of the Revere Beach Reservation was constructed on land taken for park purposes by the metropolitan park commission under St. 1893, c. 407, St. 1894, c. 483, and St. 1895, cc. 305, 450, and, although it was in the form of a boulevard and was spoken of as such, it never became a public way, and these " statutes did not impose any liability on the metropolitan park commissioners for a defect in or want of repair of such boulevard.</p> <p>In the case in which the decision above stated was made it was pointed out that in taking the land for the boulevard of the Revere Beach Reservation and in constructing that boulevard the metropolitan park commission did not act under St. 1894, c. 288, which provides in § 3 that, “The liability arising out of any defect or want of repair in any roadway or boulevard maintained by said metropolitan park commission under this act, and the rights and remedies thereto appertaining, shall be in all respects the same as those provided by law in relation to the repairs of public ways and bridges, in chapter fifty-two of the Public Statutes and any acts passed from time to time in addition thereto or amendment thereof. Actions seeking to enforce such rights and remedies shall be brought against the commissioners as such, but there shall never be any personal liability on the part of them or any of them to any person injured as aforesaid by reason of such defect or want of repair.”</p>

<p>Bills and Notes. Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>In a suit in equity to enforce the payment of a promissory note payable to the plaintiff and signed by the individual defendant, that defendant admitted that he delivered the note to the plaintiff but contended that such delivery was conditional. In attempted support of such contention that defendant offered to show an oral agreement between himself and the plaintiff, to the effect that, if the individual defendant did not pay the note when it was due, he was not to be held if the defendant corporation, by which the plaintiff was employed, gave its obligation for the amount of the note. The presiding judge refused to admit this evidence and ordered the jury to return the answer "No” to the question “Was the note in suit delivered upon a conditional delivery?” Held, that the exclusion of the evidence and the order of the judge were right, as the, note in writing given by the individual defendant to the plaintiff could not be changed by an oral contemporaneous agreement.</p>

<p>Equity Jurisdiction, Plaintiff must come into court with clean hands. Wrongdoer without Remedy.</p> <p>One who conveyed his interest in certain real estate to another for the illegal and fraudulent purpose of placing it beyond the reach of the grantor’s creditors, cannot maintain a suit in equity against such grantee and a third person, to whom the grantee has sold it for a fair price, to set aside the sale on the ground that the plaintiff was the real owner although the title stood in the name of his grantee, such grantor being unable to invoke the aid of the court to set aside the conveyance of his grantee on the ground of his own previous fraud.</p>

<p>Tort by the administratrix of the estate of Jerome Ford, late of Boston, against the Trident Fisheries Company, a corporation • organized under the laws of the State of Maine, for negligently causing the death by drowning of the plaintiff’s intestate on December 21, 1916, when he was employed as the mate of the defendant’s steam trawler called the Long Island. Writ dated December 26, 1916.</p> <p>In the Superior Court the case was tried before White, J. At the close of the plaintiff’s evidence, which is described in the opinion, the judge, upon 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, Parties, Amendment, Appeal. Tax, Abatement, Exemption.</p> <p>A petition under St. 1909, c. 490, Part I, § 77, appealing to the Superior Court from the refusal of the assessors of a town or city to abate a tax must be brought against the town or city, and the assessors are not proper parties to the proceeding. Following Welch v. Boston, 211 Mass. 178.</p> <p>Such a petition will not be dismissed merely because the petitioner erroneously named the assessors of a town as respondents, and in such a case the petitioner will be given leave to amend his petition by substituting the town itself as the respondent.</p> <p>Such a petition is not brought prematurely merely because it is entered in the Superior Court before the next return day for the entry of actions in that court after the expiration of the number of days named in the statute, if on the regular return day when it should have been entered formally all the necessary steps have been taken to perfect the appeal, and in such a case the entry will be treated as having been made on that day.</p> <p>The provision contained in St. 1909, c. 490, Part II, § 88, that (with certain exceptions) “No action to recover back a tax shall be maintained . . . unless it is commenced within three months after payment of the tax,” has no application to a petition for the abatement of an excessive assessment under Part I, § 72 of that chapter, which is not an action of contract and is a remedy given to an aggrieved taxpayer within six months after the date of his tax bill.</p> <p>On a petition to the Superior Court by an educational institution, whose real estate owned and occupied by it or its officers for the purposes for which it was "incorporated is exempt from taxation under St. 1909, c. 490, Part I, § 5, cl. 3, for the abatement of a tax attempted to be assessed on such real estate, if it appears that a sworn list of property as required by Part I, § 41 of that chapter was furnished by the petitioner, but that it was not verified properly as required by § 43 and that, although various parcels of land belonging to the petitioner were enumerated, only the estimated value of the entire property was given, the trial judge is warranted in finding that there was no wilful omission to bring in to the assessors the list and statement required by § 41.</p> <p>In the remedy given to a taxpayer by St. 1909, c. 490, Part I, §§ 72, 77, by a petition to the Superior Court appealing from a refusal of the assessors of a town or city to abate a tax, there is no requirement of a protest in writing. In the present case, if there had been such a requirement, it was complied with by the indorsement of a protest on the face of the tax bill when handed by the petitioner to the collector with the tax paid.</p> <p>A house and lot owned by an academy, a literary institution, and occupied by its head master, other houses and lots of land owned by the academy and occupied respectively by an instructor and an instructress of the academy, and another house and lot belonging to the academy occupied by the janitor of the academy, who was its employee and whose services were necessary in the orderly and efficient management of the academy as an educational institution, are exempt from taxation under St. 1909, c. 490, Part I, § 5, cl. 3.</p> <p>The fact, that an instructress of an academy corporation under the terms of a deed of gift, by which she conveyed to the academy the house and lot of land occupied by her as such instructress, is to receive during her life an annuity from the academy, is not inconsistent with and does not prevent a finding by a trial judge that the property is being used by the corporation with the dominant purpose of accomplishing one of the objects for which the corporation was created and that the trustees of the academy acted in good faith and not unreasonably in determining the use of such real estate.</p>

<p>Tort for personal injuries sustained on October 6, 1914, when the plaintiff was six years and seven months of age and was crossing Blue Hill Avenue in Boston toward the intersection of Julian Street with that avenue, by reason of being struck and thrown to the ground and run over and his right leg cut off by a street railway car alleged to have been operated negligently by the defendant’s servants. Writ dated June 5, 1916.</p> <p>In the Superior Court the case was tried before Hitchcock, J. At the close of the evidence, which is described in the opinion, the judge refused to order a verdict for the defendant. The defendant then asked the judge to make the following rulings:</p> <p>“1. Upon all the evidence in the case the plaintiff is not entitled to recover.</p> <p>“2. Upon all the evidence in the case there is no evidence that the motorman was negligent and therefore the plaintiff cannot recover.</p> <p>“3. Upon all the evidence in the case there is no evidence that any negligence of the motorman caused or contributed to causing the injuries to the plaintiff and therefore he is not entitled to recover.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $10,200. The defendant alleged exceptions.</p>

<p>Contract, What constitutes, Performance and breach. Municipal Corporations. Public Officers. Evidence, Records of public officers, Town records. Practice, Civil, Exceptions. Words, " Changes.”</p> <p>The warrant for a town meeting contained an article as follows: “To see if the Town will accept plans for a new fireproof Town Hall Building substantially as drawn by Arthur H. Vinal, architect, which embodies the ideas of D. G. Finnerty and others presented to the Town by him at this meeting, to appropriate the sum of $72,000 for the construction of such fireproof Town Hall.” Under this article the town at the meeting passed the following resolve: "Resolved that a new fireproof Town Hall be built at a cost for the completed building of not over $75,000, and that the Finnerty plan for such a building be adopted.” Held, that the article of the warrant and the resolve under it did not constitute a contract between the town and the architect.</p> <p>At the same town meeting under the same article of the warrant a vote was passed providing for a building committee with power, among other things, to advertise for bids for the erection of the town hall and to supervise its construction. The building committee appointed under this vote after negotiations-received from the architect a letter, the terms of which they accepted, which contained the following material clauses: “I agree that I will proceed and complete the plans of the Town Hall Building as submitted to and voted for by the Town of Nahant at the Town Meeting of March 18, it being understood that the Committee shall have the right to make such changes in the plans as will not materially increase the cost of construction, and as may be agreed upon between us. . . . If upon advertising for bids no bids are received from builders who are satisfactory to the Committee, which will enable your Com- ■ mittee to build the building complete, including architect’s commissions, within the limit set by the Town, namely, $75,000,1 will not hold the Town of Nahant nor the Committee legally responsible for the work done by me. . . . The true intent and meaning of this letter is that it is my desire and wish to co-operate in every way possible with your Committee and erect a building that will be a credit to your Town, your Committee and myself.” Of the bids received by the committee there was only one which would enable the committee to build the town hall complete, including the architect’s commissions, within the limits of $75,000 and that bid was made by a builder who was not satisfactory to the committee and the bid was rejected by the committee acting reasonably and in good faith. In an action by the architect against the town for the alleged breach by the town of the contract with him, the trial judge found for the defendant. Held, that the plaintiff was entitled to recover only in accordance with the terms of the contract stated in his letter, and that the finding of the judge was warranted.</p> <p>In the action above described it appeared that detailed plans for the building were prepared by the plaintiff and were submitted to the committee, and that the plans were satisfactory to the committee except in certain matters relating to the roof, to the nature of the flooring and to the presence of supporting columns in the fire engine room and the gymnasuim, which the committee insisted on having changed. The trial judge ruled that the burden was on the defendant to show that the changes which the committee made did not increase materially the cost of the building and were mutually agreed upon. It appeared that changes were made in the roof which increased the cost of the building to a material amount. It might have been found, however, that these changes in the roof were required by the committee in order that the building might be “fireproof” and thus conform to the requirement of the vote of the town upon that point. It also might have been found on the evidence that all the changes in the detailed plans as presented to the committee by the plaintiff were agreed to by the plaintiff and that, so far as these changes related to the roof, they were made by the plaintiff in order to render the building conformable to the requirement of the vote of the town that it be "fireproof,” and that the other change, which eliminated the columns, did not increase the expense by more than $1,000. If these findings were made, it also could have been found that the cost of the building according to the plaintiff’s plans was not modified materially with respect to the question whether it could have been constructed within the amount of $75,000 fixed by the vote of the town. Held, that the general finding of the trial judge for the defendant necessarily included all of the warranted findings stated above.</p> <p>In the same case it was pointed out that there was no evidence to the effect that any bid was received from a general contractor deemed responsible by the committee which would have permitted the cost of the building to be within the amount specified in the resolve of the town.</p> <p>In the same case it was held that the words in the vote of the town, “at a cost for the completed building of not over $75,000,” comprehended all the elements of expense connected with the construction of the building and by necessary implication included the architect’s commission.</p> <p>In the same case it was held that it could not have been ruled as matter of law that the plaintiff was entitled to an opportunity to modify his plans so that the cost of the building might be brought within the specified amount, it being an express term of his contract that his right to receive compensation should depend on the bids received after advertisement, and that, if each of these exceeded $75,000, he was not entitled to recover.</p> <p>In the same case it was pointed out that, in view of the terms of the plaintiff’s contract, the question whether the bids were reasonably near to the cost specified in the vote did not arise.</p> <p>In the same case it also was pointed out that no question could arise as to the reasonableness of the changes made by the committee in the light of the subsidiary finding, included in the general finding for the defendant, to the effect that the plaintiff agreed to them all.</p> <p>In the same case it appeared that a new committee, although identical with a single exception with the committee that made the contract with the plaintiff, afterwards built a town hall according to other plans and there was evidence that this committee gave the new architect an opportunity to revise his plans after bids were received. Held, that this evidence had no bearing on the rights of the plaintiff, which depended on the terms of his own contract, and also could have no bearing on the good faith of the former committee, if that was material under the issues raised.</p> <p>In the same case it was held that, the members of the building committee being public officers, their records were admissible in evidence to show their transactions with the plaintiff.</p> <p>In the same case it was held that the town records were competent to show the authority conferred upon the building' committee and also to show the conduct of the town in regard to the plaintiff’s plans and its liability to him after accepting the report of the committee.</p> <p>In the same case it was pointed out, that, if some parts of the records of the committee or of tbie town ought to have been excluded, the plaintiff should have called special attention to those parts and have asked to have them stricken out, and that his general exception to the records put in evidence could not be sustained.</p>

<p>Attachment, Of mortgaged personal property. Conversion. Trustee Process• Waiver.</p> <p>An attempted attachment of mortgaged personal property under R. L. c. 167, § 74, when the property taken by the officer although on the farm of the mortgagor was in the possession of a keeper placed there by the same officer at the time of a previous attachment of the same property, is void, because the mortgaged property was not in the possession of the mortgagor when thus taken, and the taking is a conversion for which the officer is liable to the mortgagor.</p> <p>Where a mortgagor of personal property has a right of action for conversion against an attaching officer who attempted to attach such property under R. L. c. 167, § 74, when it was not in the possession of the mortgagor, if the same officer makes another attempted attachment of the same property, which also is unlawful, and the mortgagor participates in the proceedings by the appointment of an appraiser at a sale of the attached property under the last writ, the mortgagor does not waive thereby his right of action against the attaching officer for the previous conversion.</p> <p>Whether a writ of attachment by trustee process, which correctly describes the residence of the sole trustee as in one county and is made returnable in another county, is wholly void or merely voidable, here was referred to as a question which it was not necessary to decide, because the attachment was void for another reason.</p>

<p>Mortgage, Of personal property. Conversion. Trustee Process. Attachment, Of mortgaged personal property.</p> <p>In an action by a mortgagee of personal property against a deputy sheriff for the conversion of the mortgaged property by an attempted unlawful attachment of it, it appeared that in the mortgage the mortgaged property was described as "one horse, one milk wagon, two buggies, two harnesses, ten cows, two hundred fowls including hens, roosters and chickens.” The mortgage provided that the mortgagor was not to remove the property from the town of Orange without the consent in writing of the mortgagee. An auditor found that when the mortgage was made there was on the mortgagor’s farm at Orange property of the kind described in the mortgage and that there was no evidence that the mortgagor had any other property of a similar kind. Held, that on this evidence it could be found that the mortgaged property was identified sufficiently and that therefore the failure not to describe the property more specifically did not render the mortgage invalid.</p> <p>A deputy sheriff cannot justify an attempted attachment of personal property under a writ which never was entered in court and, after a failure to enter the writ within the required time, such officer becomes a trespasser ah initia.</p> <p>If a deputy sheriff who has attached mortgaged personal property fails to comply with a demand of the mortgagee for the payment of the debt secured by the mortgage made in conformity with R. L. c.' 167, §§ 69, 70, and fails to restore to the mortgagee the property so attached by him, he is liable to the mortgagee for the conversion of the property.</p> <p>Under R. L. c. 167, § 74, there can be no valid attachment of mortgaged personal property unless it is in the possession of the mortgagor.</p> <p>Whether an attempted attachment of mortgaged personal property by trustee process under R. L. c. 167, § 74, where the residence of the sole trustee is stated in the writ to be in one county and the writ is made returnable in another county, is wholly void or merely voidable, it here was not necessary to consider because the attempted attachment was wholly void for other reasons.</p>

<p>Partnership, Dissolution, Accounting. Election.</p> <p>Where a brother of one of two partners, doing business under a partnership agreement containing no provision as to the time during which the partnership was to continue, who had advanced money for the business and believed the firm to be insolvent, although it was not, caused a corporation to be formed, of which he owned substantially all the stock, and the partnership business and assets to be transferred to such corporation which assumed the liabilities of the partnership, with the assent of his brother but without the consent of his brother’s ■partner and against that partner’s wish, the transfer put an end to the partnership and it was thereby dissolved.</p> <p>The partner without whose consent the transfer, as above described, of the assets of the partnership was made brought a suit in equity against his former partner and such former partner’s brother and the corporation to which the transfer was made, praying for an accounting of the partnership affairs and for the payment to him of the value of his interest in the partnership property. Held that, when the partnership was brought to an end by the unauthorized transfer, the plaintiff had the right to have the partnership accounts taken and his interest in the partnership property ascertained, and that, when such interest had been ascertained, the plaintiff then had the further right to recover the value of such interest from his former partner and from the corporation to which such former partner had undertaken to assign the property of the partnership upon the corporation assuming the debts of the partnership.</p> <p>Tn the suit above described it was said that, after the wrongful transfer of the partnership property to the corporation, the plaintiff had had the right to treat the transfer as a nullity (except so far as the defendant partner’s interest in the partnership property was concerned) and to have the partnership affairs wound up through a sale of the partnership property by a receiver appointed by the court; but that the plaintiff had elected not to pursue this right.</p> <p>In the same suit it was held that, although the partnership property did not pass to the corporation by the wrongful transfer upon the corporation assuming the payment of the partnership debts, yet in equity the defendant partner’s interest in the partnership property passed to the corporation, and that this gave to the corporation a right to pay the debts of the partnership, which were a lien on the partnership property of which the corporation had become part owner.</p> <p>In the suit above described it was found that the value of the plaintiff’s interest at the time of such dissolution of the partnership by the attempted transfer was $714. The plaintiff, however, did not show that this $714 to which the plaintiff was entitled at the time of such dissolution earned any profits while in the hands of the defendants, and it accordingly was held that the plaintiff was entitled to $714 and to interest on that sum from the time of such dissolution.</p> <p>In the suit above described the plaintiff’s bill contained the following prayer: “That the defendants ... be ordered to pay to the plaintiff the value of his interest in said personal property, bills receivable and said real estate and in the good will of said concern and the damages for taking and appropriating the same.” Held, that under this prayer, the trial judge was right in making a decree ordering the plaintiff, on being paid the sum of $714 with interest from the time 'of such dissolution, to convey to his former partner his interest in the various items of partnership property which they had owned in common.</p> <p>In the same case it was pointed out that the plaintiff, by asking for an accounting on the terms of the prayer quoted above, had offered to convey his interest in such part of the partnership property as required a conveyance to pass the title.</p> <p>In the suit above described there were besides the defendant partner of the plaintiff and the defendant corporation two individual defendants, who were brothers of the defendant partner, and the findings showed that they had participated in the wrongful transfer to the corporation, and it was held that these individual defendants as well as the defendant partner and the corporation were bound to repay to the plaintiff the $714 with interest from the time of the dissolution.</p>

<p>Agency, Broker’s commission. Evidence, Competency, Of mental action, Of custom, Extrinsic affecting writings. Contract, In writing. Practice, Civil, Amendment, Exceptions.</p> <p>In an action by a real estate broker to recover a commission for procuring a lease of real estate of the defendant, where the declaration alleged that a lease of the defendant’s real estate in question to the former lessee at a much higher rent resulted from the plaintiff’s services, which had been directed toward leasing the premises to a certain new tenant at such higher rent, the agent of the lessee who had charge of leasing stores for the occupation of such lessee was called by the plaintiff as a witness and on his cross-examination was permitted to be asked by the defendant, subject to the plaintiff’s exception, “What influence . . . did any of the quotations that were ever made to you have on your finally agreeing to take a lease of these premises on the terms at which you did take them? ” and “What did influence you in taking this lease on the terms on which you took it?” To the first question the witness answered, “None, whatever,” and to the second question answered, “Why, I felt that we could merchandise goods there and make a profit by so doing.” Held, that the questions and answers were competent as tending to show that the taking of the lease was not procured by the plaintiff.</p> <p>In the case above described the plaintiff contended that he had procured a tenant ready and willing to take a lease at the increased rent at which the defendant’s former tenant finally took it and that an offer made by such proposed tenant was accepted by the defendant, but it appeared that the negotiations left undetermined the place, kind and quality of the alterations, not to exceed $30,000, which by the terms of the offer were to be “subject to the approval of the owners and the prospective lessees,” and the plaintiff testified, on his cross-examinatian, that " only the money and solvency of the tenants was settled then; the repairs were never settled; no, sir, we never came to definite terms on the whole lease.” Held, that the evidence would not warrant a finding that the prospective tenant and the landowner ever agreed on the final terms of the lease or that the defendant ever accepted any definite offer made by such prospective tenant.</p> <p>In the same case the plaintiff further contended that he had proved a custom under which he was entitled to charge the usual commission. The alleged custom was, in substance, that where a real estate broker, employed for the purpose of getting an increased rent, secures a bona fide offer from a responsible person, if the owner takes such offer to the present tenant and thereafter that tenant’s lease is extended at the figure of the new offer, the broker is entitled to a full commission on the gross rent. It appeared that the plaintiff was employed under a contract in writing, which provided that he should get a commission, only if he secured a tenant acceptable to the defendant and “providing they will pay what I [the defendant] consider to be a fair rental and providing other conditions are satisfactory to me.” Held, that, even if the custom alleged had been proved by the evidence and was applicable to the facts of the case, it could not be used to contradict the plain provisions of the express contract which the parties had made and to substitute another contract which they had not made.</p> <p>In the same case the plaintiff also contended that the defendant acted in bad faith, especially by negotiating with his present tenant without notifying the plaintiff and by quoting to such tenant the amount of the rent offered by the prospective tenant alleged to have been procured by the plaintiff without disclosing by whom the offer was made. It appeared that the plaintiff never had approached the defendant’s present tenant and that that tenant was not induced to take a new lease of the premises by any efforts of the plaintiff, and that the defendant only had sought to induce his present tenant to continue as lessee at an increased rent when it appeared doubtful whether the defendant and the prospective tenant alleged to have been procured by the plaintiff could come to terms. Held, that the mere fact that the defendant quoted to his present tenant the amount of rent offered by the plaintiff’s alleged customer was not evidence of bad faith or of a purpose to, defraud the plaintiff.</p> <p>In the same case the plaintiff also contended that he was entitled to a commission on the ground that by his agreement with the defendant he had the exclusive right to lease the real estate in question at the time that the defendant gave the new lease to his present lessee. The plaintiff testified that shortly before the new lease was made the defendant said to him “that he was not negotiating with anybody for that property, that I knew that I was the only one that was handling the matter.” If this and other evidence of the plaintiff was believed, it could have been found that the defendant had agreed that no other broker or agent should be employed to lease the premises and that the procurement of the new lease to the old tenant at the increased rent by another broker employed by the defendant was a breach of this agreement. The question of exclusive agency appeared to have been presented fully by the evidence at the trial, but the plaintiff’s declaration contained no allegation of exclusive agency. The judge ordered a verdict for the defendant, and the plaintiff alleged exceptions. Held, that the ordering of the verdict by the judge was right on the pleadings before him, but that, if within thirty days the Superior Court should permit the plaintiff to amend his declaration by adding one or more counts to cover the issue of exclusive agency, the exceptions should be sustained, and that otherwise they should be overruled.</p>

<p>Tort against the city of Boston under R L. c. 51, §§ 20, 21, for personal injuries sustained on March 7, 1914, when the plaintiff was walking on the sidewalk on Boylston Street, a public highway in Boston, by reason of an alleged defect in the condition of the sidewalk consisting in part of ice thereon. Writ dated March 6, 1916.</p> <p>In the Superior Court the case was tried before Quinn, J. It appeared that the accident happened at about eight o’clock on the morning of March 7,1914, and that on March 26,1914, a notice in writing of the time, place and cause of the injury was served upon the defendant. At the close of the plaintiff’s evidence, which is described in the opinion, upon motion of the defendant the judge ordered a verdict for the defendant on the ground that the notice to the defendant of the time, place and cause of the injury had not been given seasonably. The plaintiff alleged exceptions.</p> <p>R L. c. 51, § 21, contains the following provisions: “Such notice shall be in writing, signed by the person injured or by some one in his behalf. ... If by reason of physical or mental incapacity it is impossible for the person injured to give the notice within the time required, he may give it within ten days after such incapacity has been removed . . .”</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board dismissing the claim of Theresa D. Berman for compensation for an injury alleged to have been suffered by her on May 7, 1918, when she was employed as a stenographer by the Gulf Refining Company, and alleged to have been caused by the tipping over of a swivel chair in which the employee was sitting in the course of her employment.</p> <p>The case was heard by Jenney, J. By the record it appeared that the decision of the single member of the Industrial Accident Board included the following: “While upon the evidence in this case I find that the employee m the course of the employment on May 7,1918, tipped over backward in a swivel arm chair in which she was sitting and fell to the floor, striking on her head and back, I am not satisfied from the evidence that her abdomen was injured either by the arm of the chair or in any other way by the fall, . . . I cannot bring myself to the conclusion upon careful consideration of all the evidence that the fall which the employee received in the course of her employment had any causal relation with the conditions which caused her incapacity for work between May 7 and June 3.”</p> <p>The Industrial Accident Board affirmed and adopted the findings and decision of the single member of the board and found that it had not been shown that there was any causal relation between the injury on May 7, 1918, and the conditions which caused the employee’s disability for work. They made an order that the claim for compensation be dismissed, from which the appeal was taken. The judge made a final decree in accordance with the decision of the Industrial Accident Board dismissing the claim; and the employee appealed.</p> <p>The case was submitted on briefs.</p>

<p> Sale. Name. </p> <p>In an action for goods sold and delivered, the defendant contended that the goods were sold and delivered to another person to whom the defendant before the delivery of the goods had sold his business, and who thereupon had filed a certificate under St. 1907, c. 539, that he was conducting the business under a name similar to that formerly used by the defendant. There was evidence that the defendant had continued to work at the place of business after he had given a bill of sale of the business to his alleged successor, who was a minor, and it might have been found that the transaction with such alleged successor was a sham and that the defendant in fact was conducting the business. Held, that the judge rightly refused to order a verdict for the defendant and that the case was one for the jury.</p>

<p>Workmen’s Compensation Act, To whom it applies, Independent contractor. Agency, Existence of relation, Independent contractor.</p> <p>Where the proprietor of three two-horse teams lets them with the drivers to a corporation to haul dirt at the rate of $1 an hour for each team and driver, driving one of the teams himself and hiring and paying drivers for the others, and where the corporation exercises no control over the drivers except to direct them where to get dirt and where to dump it, the master teamster thus driving one of his own teams is not an employee of the corporation, and, if he is injured while engaged in the work of hauling and dumping the dirt, he cannot maintain a claim under the workmen’s compensation act.</p> <p>In the case where the point above stated was decided, it was pointed out that the provision contained in St. 1911, c. 751, Part III, § 17, for the benefit of injured employees of an independent contractor does not apply to an injury to the independent contractor himself.</p>

Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board awarding compensation to George Winslow of Mansfield for an injury sustained by him on June 26, 1918, when working on the roads of that town, which had accepted the provisions of St. 1913, c. 807. The case was heard by J. F. Brown, J. The material evidence reported by the Industrial Accident Board is described in the opinion.

<p>Tort for personal injuries sustained by the plaintiff on October 7, 1916, when the plaintiff was walking on the sidewalk of West Newton Street near the corner of St. Botolph Street in Boston, from being struck by a motor car operated by one O’Brien, by reason of that car being struck violently by the car of the defendant negligently and unlawfully operated by him, forcing the car operated by O’Brien upon the sidewalk and against the plaintiff, thereby knocking him over a fence and injuring him severely. Writ dated October 17, 1916.</p> <p>In the Superior Court the case was tried before Fessenden, J., together with actions respectively against the owner of the other car and O’Brien, its driver. At the close of the plaintiff’s evidence a verdict for the defendant owner of the other car was ordered by agreement, and the trial proceeded in the cases against O’Brien and Sewall. The material evidence is described in the opinion.</p> <p>The defendant Sewall asked the judge to rule that, if O’Brien was negligent and his negligence contributed to the plaintiff’s injuries, there could be no recovery against the defendant Sewall. The judge refused to make this ruling. The defendant Sewall then asked the judge upon all the evidence to order a verdict for him. The judge refused to do this and submitted to the jury the cases against the defendant Sewall and the defendant O’Brien. The jury returned a verdict for the defendant O’Brien, and, in the action against the defendant Sewall, returned a verdict for the plaintiff in the sum of $7,150. At the request of the defendant Sewall the judge reported the case for determination by this court. If the judge’s refusal to order a verdict for the defendant was wrong, final judgment was to be entered for the defendant; otherwise, final judgment was to be entered for the plaintiff in the amount of the verdict with interest from April 22, 1918, and costs.</p> <p>The case was submitted on briefs.</p>

<p>Interest. Contract; Implied: unliquidated claim.</p> <p>In an action for compensation for services upon a quantum, meruit, where it appears that the plaintiff worked for the defendant at the defendant’s request but without any agreement express or implied as to the price to be paid for the services, the plaintiff is entitled to recover interest only from the date of the writ and not from a previous day on which he demanded payment from the defendant.</p>

<p>Equity Pleading and Practice, Hearing on bill and answer. Jurisdiction. Public Service Commission. Telephones and Telegraphs. United States. Statute, Construction.</p> <p>When a suit in equity is set down to be heard upon the bill and answer, allegations in the answer which are in conflict with those in the bill must be taken to be true, and the allegations of the bill are to be taken as true only so far as they are admitted or are not'at variance with facts well pleaded in the answer.</p> <p>The public service commissioners cannot maintain a bill in equity under St. 1913, c. 784, § 28, against a telephone corporation to enforce by a mandatory injunction an order of the public service commission relating to toll telephone rates within this Commonwealth, while the telephones and property of the corporation are in the possession and control of the United States under a proclamation of the President and a bulletin of the Postmaster General made by authority of the war power granted by the resolution of Congress of July 16, 1918.</p> <p>Consent of the United States to be made a party to a proceeding in a State court cannot be inferred from a remote and equivocal phrase in a resolution of Congress having direct and adequate reference to another matter.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 11, 1918, and afterwards amended, by the surviving executor and trustee under the will of John Davis Williams French.</p> <p>The will of the testator was as follows:</p> <p>“Be it Remembered, That I, John Davis Williams French of Boston in the County of Suffolk & Commonwealth of Massachusetts, do make my last will thus —</p> <p>“I give & devise all real estate, belonging to me & any interest which I have in real estate at my decease, with the exception hereinafter mentioned, to my cousin, John D. Williams, my brother Aaron Davis Weld French & my friend Arthur Lincoln, the survivor & his heirs; in Trust, to take charge of & manage the same & to pay the net income to my brother A. D. Weld French aforesaid & my sisters, Caroline L. W. French and Cornelia A. French, to be equally divided among them, or those living at my decease, and upon the death to the survivors or survivor, and after the death of the last survivor; to the corporations, societies and persons hereinafter named as residuary devisees and in the manner & for the purposes, for which the personal property is hereinafter given to them.</p> <p>“If my father, brother, or sisters, or any one of them desires to occupy, or reside on my farm at North Andover any part of the year, he, she, or they may do so on payment of such rent and on such terms as the Trustees may decide upon, in which case the personal property on the farm & in the house & buildings thereon shall remain unsold during the continuance of such occupation, if the party or parties so occupying desire; if not so desired, the personal property may be sold & the farm also, when such occupation ceases, and the proceeds treated as personal property under the residuary clause of this will —</p> <p>“All my books and pamphlets on Agricultural and Horticultural matters & subjects relating thereto I give to the Massachusetts Horticultural Society, but any books which they do not wish I desire to be given to the Library of the Massachusetts Agricultural College at Amherst — My miscellaneous books & pamphlets I give to the town of North Andover for its Public Library.</p> <p>“As to all my remaining personal property and the proceeds of the Farm in North Andover, when sold, the same are to be disposed of and distributed among the Societies, corporations & persons hereinafter mentioned, but the Executors may take into consideration the position & necessities of such societies & corporations at the time of distribution and make such changes .in the amounts, given to them, as they deem proper. I wish the bequests to individuals to be paid as soon as possible after my decease, and those to societies as soon as the Executors can do it conveniently & without making unnecessary sacrifices.</p> <p>“To the Young Mens Christian Association Ten Thousand dollars, the income only to be used & for the purchase of books for the Library.</p> <p>“To the Episcopal City Mission Ten Thousand dollars.</p> <p>“To the Diocesan Board of Missions of Massachusetts, (Episcopal) Five Thousand dollars.</p> <p>“To St. Luke’s Home for Convalescents (Episcopal) Ten Thousand dollars.</p> <p>“To the Church Home for orphans & destitute children (Episcopal) Ten Thousand dollars to be used for industrial education.</p> <p>“To the Corporation of the Chapel of the Good Shepherd, of which I am Treasurer, Ten Thousand dollars.</p> <p>“To the Trustees,, of Donations to the Protestant Episcopal Church in the Diocese of Massachusetts, in trust, towards the erection of a Parish house to St. Pauls Church North Andover, Massachusetts, or for the support of the Parish Ten Thousand dollars.</p> <p>“To Harvard College Five Thousand dollars.</p> <p>“To the Bay State Agricultural Society Two Thousand dollars.</p> <p>“To the Massachusetts Horticultural Society for its Library, Five Thousand dollars, to be called the J. D. Williams French fund, the interest to be used for the purchase of books.</p> <p>“To the American Forestry Association Two Thousand dollars — I am Vice President of this.</p> <p>“To the Associated Charities of Boston Two Thousand dollars.</p> <p>“To the Rev. George J. Prescott, or his heirs One Thousand dollars; he is now rector of the Church of the Good Shepherd Boston.</p> <p>“To the reverend George Walker, now rector of St Pauls Church, North Andover, Massachusetts, & his heirs Five hundred dollars.</p> <p>“To each of the following persons, classmates of mine, as a mark of my regard, namely, Edward Sturgis Grew, John Murray Brown, William Greenough, Arthur Lincoln, Reverend Arthur Lawrence, Charles C. Jackson & Charles S. Fairchild Two hundred dollars.</p> <p>“To James Hickie, Janitor of the Huntington House on Cortes Street, Boston, one hundred dollars.</p> <p>“To my godson, William Wirts White junior, One hundred dollars.</p> <p>“The residue''of my estate I give & devise to the Diocesan Board of Missions of Massachusetts, to be invested as a fund and the income used by said Board, as they deem best.</p> <p>“I authorize the Trustees, acting under this will to sell real & personal estate and to change real estate into personal & personal into real estate, as & when they think it for the advantage of those interested.”</p> <p>Here followed clauses appointing executors and trustees and the signature and attestation clauses.</p> <p>The codicil struck out the first clause of the will, beginning with the words, “I give & devise” and ending with the words “hereinafter given to them;” and inserted in lieu thereof the following clause: “I give and devise all the real estate belonging to me and any interest, which I may have in real estate at my decease, with the exception of my farm at North Andover & the house and buildings thereon, mentioned in the next clause of my will, to my cousin, John D. Williams, my brother Aaron Davis Weld French and my friend Arthur Lincoln & the survivor & his heirs, In Trust, to take charge of & manage the same and to pay the net income to my said brother, Aaron Davis Weld French & my sister Cornelia A. French, to be equally divided between them, & upon the death of either to the suvivor; & after the death of the survivor I give & devise the said real estate and interest to the /Societies, corporations & persons’ named in that part of my will, which disposes of ‘all my remaining personal property and the proceeds of the farm in North Andover, when sold.’” In all other respects the codicil ratified and confirmed the will.</p> <p>The case was reserved by Crosby, J., upon the pleadings and certain admitted facts for determination by the full court.</p>

<p>Contract for $121.87, alleged to be due as rent for premises numbered 15 and 16 on Washington Street North in Boston for the period from June 14 to July 19, 1917. Writ in the Municipal Court of the City of Boston dated July 19, 1917.</p> <p>The declaration was in two counts. The first count contained allegations that on June 14, 1917, the plaintiff became lessee of the premises in question under a lease in writing, that at that time the defendants were in possession unlawfully and without right, that the plaintiff immediately gave to the defendants a notice of his lease and demanded possession of the premises, that the defendants continued to occupy to and including the date of the writ, and owed the plaintiff the fair valué of the premises for that period, which was $121.87. The second count was upon an account annexed for use and occupation of the premises for the period named.</p> <p>The defendants’ answer, besides a general denial, alleged in substance that they had occupied the premises under a sublease in writing from the McNeil Corporation, who held a lease in writing from the owner; that on March 16, 1917, “by reason of a failure on the part of the McNeil Corporation to pay its rent in accordance with the stipulation in its written lease,” the owner “made an entry of said premises and took possession of same and notified the defendants to pay their rent to” him; that the defendants refused to recognize the title of the owner and entered into an agreement in writing with him whereby he “agreed to recognize the lease as valid which the defendants had entered into with the said McNeil Corporation, and further agreed to receive the rent from the defendants as agent for the said McNeil Corporation and further agreed to protect the defendants in case the McNeil Corporation should attempt 'to break the defendants’ lease by reason of their failure to pay the rent direct to the McNeil Corporation;” that the defendants paid their rent as it became due; that on June 15, 1917, they sent a check for the .rent to the owner, who returned it, notifying them of the lease to the plaintiff and of his demanding the premises; that they also received such notice and demand in writing from the plaintiff; that they notified the plaintiff that they held the premises under a lease in writing as above set out; that on June 26,1917, they by their attorney made an agreement in writing with the plaintiff by his attorney, by a letter hereinafter quoted, and that, excepting as stated in that letter, they never admitted the plaintiff’s title and that they never have agreed to pay the plaintiff any rent.</p> <p>At the trial in the Municipal Court, the evidence was introduced which is described in the opinión. The letter of June 26, 1917, from the plaintiff’s attorney to the defendants’ attorney followed a conference between one of the defendants and the plaintiff’s attorney and was as follows:</p> <p>“This letter is to confirm the oral understanding reached between us on Saturday last in relation to ejectment proceedings brought by Albion K. Pierce of Cambridge against Morris Kolikof and Joshua Zorokowich co-partners doing business under the firm name and style of Star Dry Goods Company, to obtain possession of premises 15-16 Washington Street in Boston.</p> <p>"In consideration of your agreements not to enter an appearance or to contest this ejectment proceeding we agree that we will not place the execution in the hands of an officer prior to August 1st, 1917.</p> <p>“From what Mr. Kolikof has stated to us we trust that the premises will be entirely vacated before August 1st arrives.”</p> <p>On July 9, the plaintiff’s attorney again wrote to the defendants’ attorney as follows:</p> <p>“We again refer to our letter to you under date of June 26th, 1917, in respect to the above entitled matter.</p> <p>“Under date of June 15th, 1917, we wrote to Messrs, Zorokowich and Kolikof returning then- check for $108.33, which had been sent to George A. Sawyer to cover use and occupation portion, of the premises 15-16 Washington Street North, for the period June 15th, 1917 to July 15th 1917, stating that Mr. Sawyer could not accept this money by reason of the leasing of the property to Mr. Pierce, who was about to begin legal action to gain possession of the premises.</p> <p>“Various conferences followed after the writing of this letter of June 15th, and it was finally agreed that in consideration of the agreement on your part not to enter an appearance or to contest the ejectment proceedings we would not place the execution for possession in the hands of an officer prior to August 1st, 1917. This agreement, however, did not contemplate any compromise with respect to the payment for use and occupation of the premises by-Messrs. Kolikof and Zorokowich, in fact, nothing has ever been said with respect to this occupation, and Mr. Pierce will, of course, not waive the same.</p> <p>“ In view of our recent conversation with you on this subject we felt that we should at once write you about the matter, and notify you that your clients will be held accountable for use and occupation of the above named premises until they actually vacate the same, and we will thank you to please write us by return mail that this arrangement is understood by you.”</p> <p>There was no evidence of a reply to this letter.</p> <p>The agreement in writing between the owner and the defendants referred to in the answer was as follows:</p> <p>“$108.33 Boston, March 16, 1917.</p> <p>Received of Star Dry Goods Co. one hundred eight and thirty-three one hundredths dollars, being one month’s rent of premises at 15 and 16 Washington Street North, Boston, occupied by them, to April 15, 1917, and in consideration of such payment I hereby guarantee said company against any claim that McNeil Corporation may make for such rent.</p> <p>(Sgd) George A. Sawyer, trustee under will of John Cowdin.”</p> <p>The defendant Kolikof in direct examination testified that he occupied the premises under a written lease for seven years from the McNeil Corporation. The lease was admitted in evidence. He then was asked whether he occupied the premises under “Mr. Sawyer [¡the owner] or Mr. Pierce [¡the plaintiff] or did you claim to occupy them under an adverse title from a third party?” and "Under whom did you claim to hold title?” and "Did you ever occupy said premises as a tenant at will under Mr. Pierce or Mr. Sawyer?” and “Did you pay rent to Sawyer as Sawyer’s tenants or in his capacity of agent for the McNeil Corporation?” There was no statement of what answers were expected. The questions were excluded.</p> <p>The defendants asked for the following rulings, which the judge disposed of as stated.</p> <p>"1. Upon all the evidence, and the weight of the evidence, the plaintiff cannot recover.” "Not given.”</p> <p>“2. In an action for rent for use and occupation against a tenant at sufferance, it is a good defence that the defendants in good faith believed that they had a legal right to occupy the premises in question and claimed to occupy the said premises by an adverse title under a written lease from a third person and denied the plaintiff’s title.” "Not given; predicated on facts not found by court.”</p> <p>“3. If the tenants entered into possession under a written lease and if they occupied after the termination of said lease, they were there as tenants at sufferance.” “ Given.”</p> <p>“4. An action for use and occupation requires proof of some agreement, expressed or implied, to pay for the beneficial enjoyment of the premises. It cannot be supported where there has been only an occupation founded on a title which is adverse to and inconsistent with the right claimed by the plaintiff.” “ Given.”</p> <p>“ 5. If the defendants in good faith believed that they had a bona fide claim to hold the premises by virtue of a lease from the McNeil Corporation and have never expressly or impliedly agreed to pay rent to the plaintiff, then the plaintiff cannot maintain the action for rent.” “Not given; not in accord with facts found.”</p> <p>“6. That the plaintiff in order to recover for use and occupation must prove some agreement, either expressed or implied, to pay for the beneficial enjoyment of the premises and such action cannot be supported where there has been only an occupation founded on a title which is adverse to and inconsistent with the right claimed by the plaintiff.” “ Given.”</p> <p>“7. The fact that the title was in dispute and that the defendants have claimed to occupy under a lease from the McNeil Corporation shows that there was no agreement either expressed or implied by law on which an action of contract for rent can be maintained.” “Not given; not in accord with facts found.”</p> <p>“8. If the trustee George A. Sawyer executed a lease to the plaintiff with the intention of terminating the defendants’ tenancy, then the defendants were entitled to a reasonable time to vacate the same, and when the plaintiff gave the defendants forty-eight hours’ notice to vacate and the defendant then contended that it would be impossible for them to vacate before August 1, 1917, and the plaintiff gave them until that time without saying anything about rent, and the defendants actually vacated the premises before that time, the plaintiff is not entitled to recover.” “Not given; not in accordance with facts' found.”</p> <p>“ 9. That the evidence of the plaintiff and of Mr. Wright being to the effect that they never intended to create a tenancy between the plaintiff and the defendants and that nothing was said by either of them as to the payment of rent, is prima fade evidence that there never was an agreement, either expressed or implied, that the defendants were to pay the plaintiff rent.” “Not given; not in accordance with facts found.”</p> <p>“10. If the evidence proves that the defendants have always claimed to hold said premises under their lease from McNeil Corporation and have denied the plaintiff’s title, then the defendants held same by an adverse title and the action for use and occupation cannot be maintained.” “Not given; predicated on facts not found by the court.”</p> <p>The judge found for the plaintiff and at the request of the defendants reported the case to the Appellate Division. The report was dismissed; and the defendants appealed.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board awarding compensation to Julia Keohane, the alleged dependent widow of John J. Keohane, who was injured and killed on August 14, 1916, when in the employ of Ellen A. McCarthy, executrix of the will of Timothy J. McCarthy, who held at the time of his death a policy of workmen’s compensation insurance issued by the Massachusetts Bonding and Insurance Company for a period of twelve months from March 3, 1916.</p> <p>The case was heard by Wait, J., who made the order of February 11, 1918, which is quoted in the opinion. The alleged dependent widow of the deceased employee, who also was the administratrix of his estate, filed an appeal to this court from the order.</p> <p>The further proceedings are described in the opinion. They resulted, as there stated, in a final decree that the claim of the alleged dependent widow and administratrix of the estate of the deceased employee be dismissed; and such widow and administratrix appealed.</p> <p>The case was submitted on briefs.</p>

<p>Assignment. Landlord and Tenant, Assignment of rent, Conveyance of reversion. Deed, Recording.</p> <p>An assignment under seal by the owner of real estate of rent to become due under the provisions of a lease of the premises for a term of less than seven years, is effectual, after notice to the lessee, against one who, without notice of the assignment and before notice was given to the lessee, purchased and received conveyance of the premises from the owner.</p>

<p>Contract for a balance due to the plaintiff as subcontractor upon a building contract. Writ dated July 30, 1898.</p> <p>After a finding for the plaintiff in the sum of $2,997.39, the plaintiff proceeded against the trustee. These proceedings, which were before Wait, J., are describee} in the opinion. The trustee asked for the following rulings, among others:</p> <p>“(1) Upon all the evidence and the auditor’s report, the city of Boston should be discharged in the above entitled cause.</p> <p>"(2) Upon all the evidence and the auditor’s report the city of Boston should not be charged as trustee in the above entitled cause.</p> <p>“ (3) If all the work contemplated by the written contract, dated August 3, 1894, between Brennan and the city of Boston, was not completed on or before July 30, 1898, the city of Boston owed Brennan at the time of the service of the plaintiff’s writ upon it in the above entitled case, nothing, absolutely and without any contingency.</p> <p>“(4) If all the work contemplated by the said written contract was not completed on or before July 30, 1898, the city of Boston had no funds in its hands which could be attached by the trustee process in the above entitled cause at the time of the service thereof upon it.</p> <p>“ (5) If Brennan or any of his subcontractors performed any work after July 30, 1898, which was required by the terms of the said written contract, the city of Boston owed Brennan nothing, absolutely and without any contingency.</p> <p>“ (6) If Brennan or any of his subcontractors had not completed all the work contemplated by the said written contract on or before July 30,1898, then the city of Boston had no funds in its hands which could be attached by trustee process at the time of the service of the plaintiff’s writ upon it.</p> <p>“ (7) Stephen Brennan was responsible for all work done under and in connection with the written contract dated July 3, 1894, between the said Brennan and the city of Boston.</p> <p>“(8) Upon all the evidence and the auditor’s report, a substantial amount of work under Brennan’s contract remained to be done and was done after July 30, 1898.</p> <p>“ (9) Article 8 on page 58 of the written contract, dated August 3, 1894, between Brennan and the city of Boston, permits the city of Boston to retain any sum of money in its hands to complete any work unfinished by the contractor Brennan, and to correct any work left imperfect by the contractor Brennan; the money thus held is not subject to attachment by trustee process by any of Brennan’s creditors.</p> <p>“ (10) Any money held by the city of Boston as a reserve in accordance with the terms of Article 9 on page 58 of the written contract, dated August 3, 1894, could not be attached by trustee process by any of Brennan’s creditors until thirty-one days after the completion and acceptance of the whole work, and then only if all the claims and liens arising out of the carrying out of the contract according to its terms had been paid.</p> <p>“(11) The funds held by the city of Boston as reserve in accordance with the terms of the contract dated August 3, 1894, between Stephen Brennan and the city of Boston, as modified by the agreement dated August 11,1896, between the said parties, were not attachable by trustee process by the said Garratt-Ford Company on July 30, 1898.</p> <p>“ (12) Upon all the evidence, the city of Boston had no goods, effects or credits of the said Stephen Brennan in its hands or possession which could be attached by trustee process by the said Garratt-Ford Company on July 30, 1898.”</p> <p>“ (14) Upon all the evidence and the auditor’s report, the furnishing and placing of the seats always remained a part of Brennan’s contract.</p> <p>“ (15) Upon all the evidence there were not at the time of the service of the plaintiff’s writ upon it any goods, effects or credits of the said Stephen Brennan in the hands or possession of the city of Boston which were due and payable to the said Brennan absolutely and without any contingency.”</p> <p>“(17) Upon all the evidence the plaintiff has not sustained the burden of proving that there were at the time of the service of the plaintiff’s writ upon it any goods, effects or credits of the said Stephen Brennan in the hands or possession of the city of Boston which could be attached by trustee process.”</p> <p>The judge refused to rule as requested, and allowed a motion of the plaintiff to charge the trustee; and the trustee alleged exceptions.</p> <p>The bill of exceptions contained the following statement in regard to the report of the evidence: "Much correspondence between the city of Boston and Brennan during the months of May, June and July, 1898, and later was introduced in evidence. All of this correspondence passing between the principal defendant and the alleged trustee relative to the completion of the building and the state of accounts between them and the oral evidence of various witnesses was introduced and considered by the auditor to whom the matter was referred by the court as hereinafter stated. The evidence was not stenographically reported.” In the last paragraph of the bill of exceptions appears this statement: “The foregoing is a full statement of the proceedings and as far as possible of all material evidence, upon which the court ordered that the trustee be charged.”</p>

<p>Massachusetts Commission on Mental Diseases. Public Officers. Insane Person. Probate Court, Appeal. Words, “Person . . . aggrieved.”</p> <p>A majority of the Massachusetts commission on mental diseases, in filing and prosecuting a petition for the appointment of a guardian of a person alleged by them to be insane, act solely in their capacity as public officers.</p> <p>When a public officer has a duty to perform or a right to vindicate in any proceeding in the Probate Court, he is a "person . . . aggrieved” by an adverse decision and therefore under R. L. c. 162, § 9, may appeal therefrom.</p> <p>A majority of the Massachusetts commission on mental diseases may appeal from a decree of the Probate Court dismissing a petition filed by them for the appointment of a guardian of a person alleged by them to be insane.</p>

<p>Contract, Validity, In writing, Construction.</p> <p>A contract in writing is not void for uncertainty merely because it is obscure or difficult of construction, unless it is wholly unintelligible, and in case of such mere obscurity the previous negotiations of the parties may be resorted to, to show in what sense the terms of the contract are used.</p> <p>In an action for the alleged breach of a contract made by correspondence, by which the defendant agreed to ship to the plaintiff eight hundred cases of sardines, “September shipment or no sale,” it was shown that shipment in September was an essential term of the contract, that in September the price of sardines had risen greatly and that the defendant refused to make the shipment. The-defendant contended that, if the conditions prevented it from shipping the-sardines in September, both parties were released from performance. The-judge ordered a verdict for the plaintiff. Held, that the ordering of the verdict, was right, the meaning of the contract being that, if there was a failure or refusal to ship the sardines in September, the plaintiff was not bound to buy the sardines from the defendant but could procure them elsewhere and hold the defendant in damages for the excess of the market price above the contract price.</p>

<p>Contract, What constitutes, Implied.</p> <p>In an action for work and materials performed and furnished in the installation of a heating system in a garage, against a mortgagee of the land on which the garage was constructed, which had entered to foreclose its mortgage, it appeared that the mortgagor was the owner of the land on which the garage was built and had given the mortgage to the defendant to secure the sums of money to be advanced to such landowner from time to time as the work on the garage progressed, and that, before each advance was made, the agents of the defendant examined the property to ascertain the progress of the work. The judge ordered a verdict for the defendant. Held, that the ordering of the verdict was right; that the defendant’s knowledge of the work and its entry on the premises for the purpose of foreclosing its mortgage were no evidence that the defendant impliedly promised to pay the plaintiff for the work and materials.</p>

<p>Agency, Broker’s commission. Contract, Construction, Effect of custom. Custom~ Evidence, Of custom. Landlord and Tenant. Words, “Rent.”</p> <p>The word “rent,” as used in an ordinary contract between a landowner and a real estate broker in regard to procuring a tenant, means the amount to be paid for the use and occupation of the premises and does not include the amounts to be paid by the lessee as taxes or for cost of improvements.</p> <p>Where in answer to an inquiry of a landowner addressed to a real estate broker as to what the “usual commission,” which the broker was to receive for procuring a lessee, would be, the broker informed him that it would be one per cent of the gross rent, without intimating that the brokers’ schedule of the Real Estate Exchange provided for any additional charge, that statement became the broker’s interpretation of the contract of agency and excluded, any other construction more favorable to him.</p> <p>In the case in which the points above stated were decided, it also was said that, while under certain circumstances the word “rent” may be so construed in a written lease as to include taxes, cost of improvements and other payments to be made by the lessee, still such an interpretation is not to be adopted in the absence of a clear intention of the parties to that effect expressed in the lease.</p> <p>Assuming that a certain custom of real estate brokers in Boston exists and is so general and universal as to be admissible in evidence to explain a doubtful contract in an action by a Boston real estate broker to recover a commission, evidence of such a custom never can be admitted to control or vary the terms or the legal effect of a contract expressing clearly the intention of the parties.</p>

<p>Appeal to the Superior Court under the workmen’s compensation . act from a decision of the Industrial Accident Board dismissing a claim of Duncan Pass, who was alleged to have received an injury to his left eye as the result of his work when in the employ of the General Electric Company at Lynn.</p> <p>The case was heard by Quinn, J. The findings of the Industrial Accident Board warranted by the evidence are stated in the ■opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board; and the employee appealed.</p> <p>The case was submitted on briefs.</p>

Contract for breach of a contract to marry. Writ dated February 24,1917. In the Superior Court the action was tried before McLaughlin, J. There was a verdict for the plaintiff in the sum of $5,000, and, by agreement of the parties, the judge, “because through inadvertence the defendant failed seasonably to file his exceptions,” reported the case for determination by this court. The case was submitted on briefs.

<p>Trust, Charitable, Cy pres. Equity Jurisdiction, Charitable trust, Cy pres.</p> <p>The erection and gift of a suitable work of art as a monument to or memorial of a great spiritual leader create a public charity.</p> <p>When a charitable gift can be administered according to the directions of the donors a court of equity is not at liberty to modify the terms of the gift upon considerations of policy or convenience.</p> <p>The doctrine of cy pres can be invoked only in cases of exigency when it has become impracticable to execute reasonably the terms of the trust; and, where there has been no failure in the object of the trust, no uncertainty as to the mode of its administration and no occasion to resort to the aid of a court for the removal of defects or impediments lying in the way of the execution of the trust, the doctrine has no application.</p> <p>A committee, representing the donors of a fund contributed to procure and erect a monument to a great former rector of an incorporated church afterwards bishop of the diocese, having procured such a monument containing a statue of the late bishop, made an indenture in writing with the church, whereby the committee agreed to erect the monument on land belonging to the church and to convey it to the church in trust, and also to transfer to the church the balance of the money contributed as a trust fund for the maintenance, repair and restortion of the monument, with power to expend the portion of the income not needed for such purposes for charitable objects not ecclesiastical as to the rector, wardens and vestry of the church should seem meet, and whereby the church agreed to accept and perform these trusts. On application by the committee to the Supreme Judicial Court, that court made a decree authorizing the committee to dispose of the funds in their hands in accordance with the terms of the indenture between them and the church. Thereupon the terms of the indenture were performed, the monument was erected on land of the church upon the site selected and the remaining trust fund was-transferred to the church. About six years later the committee obtained a decree from the Supreme Judicial Court authorizing the church to expend from the trust fund then in its hands an amount not exceeding a sum named for casting in bronze and erecting on some site in the city of Boston approved by the church a statue of the late bishop which had been created in clay by another sculptor, and under authority of this decree a statue and its pedestal were completed. The wardens and vestry of the church declined to approve a proposed site for this new statue directly in front of the church building, so long as the first monument to the bishop containing the statue of him remained upon the land of the church. Thereupon the surviving members of .the original committee of the contributors filed a bill in equity, praying that the terms of the trust indenture between the committee and the church should be modified so that the church should not be required to maintain the first statue upon its grounds but might be directed or permitted to return that statue to the committee or to place it upon such other site or sites as might be selected and approvéd by the wardens and vestry of the church, and to use the trust fund in the hands of the church for the moving, maintenance, repair and restoration of the monuments. Held, that the court had no power to change the express and unequivocal terms of the charitable trust, which had been administered fully by the erection of a statue upon the designated site.</p>

<p>Two bills, in equity and two cross bills, filed in the Superior Court on January 13, 1919, and described in the opinion. The premiums involved amounted in each suit to 8500.</p> <p>The facts all being agreed upon, the bills and cross bills were reserved and reported by J. F. Brown, J., for determination by this court.</p>

<p>Petition, filed in the Supreme Judicial Court on December 19, 1918, under It. L. c. 162, § 13, for leave to enter, after the thirty days allowed by It. L. c. 162, §§ 9, 10, had expired, an appeal from the allowance of the will of Rebecca H. Baker, late of Dennis.</p> <p>The petition was heard by Be Courcy, J. The material evidence before him is described in the opinion. The record showed no memorandum of specific findings of fact nor rulings of law, but merely a denial of the petition. The petitioner appealed.</p>

<p>Contract, What constitutes.</p> <p>A general contractor, a corporation, having in charge the erection of a building, asked an elevator contractor to bid upon the installation of plunger elevators. The elevator contractor submitted a bid in writing on a May 21, stating, “It is understood that [if] in sinking the plunger we should strike any serious obstruction such as beams, solid rocks, foundations any other such materials, the removing of the same will be billed to you at regular rates.” There were no further communications until September 21, when the general contractor wrote to the elevator contractor, requesting him to call and stating that “conditions at the building are now such that you can give an accurate figure.” After examination of the premises, the elevator contractor wrote to the general contractor, submitting a lower figure than formerly, and the general contractor replied accepting his “proposal to install . . . elevators . . . according to plans and specifications by the architect . . . with all work guaranteed to comply with the new State law.” In digging two holes fourteen feet below the level of the cellar, rocks and boulders, which were a “serious obstruction,” were encountered, and a vice president of the general contractor, when sent for, told the elevator contractor to “Go to it and get the rocks out.” Held, that the elevator contractor could not recover for getting out the rocks and boulders beyond the contract price, because the provision for “extra compensation” for that work was not in the contract as finally made.</p> <p>It also was held that the direction of the vice president of the general contractor, above described, did not affect the rights of the parties, as it merely directed the elevator contractor to do what his contract required him to do.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board awarding compensation to Charles F. Keaney as the dependent next of kin of John Keaney, whose death was alleged to have resulted from an injury received by him on September 5, 1917, from being knocked down by a motor car when he was employed as a teamster by T. Libby and Company of Boston.</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 board; and the insurer appealed.</p>

<p>Bill in equity, filed in the Superior Court on October 25,1917, and afterwards amended, to set aside mortgages on the respective interests of the plaintiffs Katharine E. Downing and John J. Downing in certain real estate in the part of Boston called South Boston and for an accounting, as described in the opinion.</p> <p>After the sustaining of two previous demurrers and amendments of the bill, the case was heard by Chase, J., upon the defendants’ demurrer to the bill as finally amended. The material allegations of the bill are described in the opinion. It having been admitted by the plaintiffs that the agreements, promises and trusts alleged and relied upon by them were oral and that there should be no further amendments of the bill, by order of the judge a final decree was entered dismissing the bill; and the plaintiffs appealed.</p> <p>The case was submitted on briefs.</p>

<p>Petition, filed in the Land Court on October 15, 1917, by Greely S. Curtis, as the successor in title of Isaac C. Wyman, for the registration of his title to two parcels of land in Marble-head, only the first of which was claimed by the respondents.</p> <p>The answer of the respondents set up a title by adverse possession in the respondents as the successors of Benjamin F. Goodwin to the first of the two parcels of land described in the petition.</p> <p>The case was heard by Corbett, J. The material evidence is described in substance in the opinion. The evidence of the conversation of Benjamin F. Goodwin with a niece of Isaac C. Wyman in May, 1910, there referred to, was as follows:</p> <p>Susan B. Dickinson, called by the petitioner, testified that she was a niece of Isaac C. Wyman, that she knew Benjamin F. Goodwin well and remembered the death of her uncle Isaac C. Wyman, that about two weeks after the death of her uncle Isaac, Benjamin F. Goodwin visited her at her home and said to her, '“Susan, I hope I shall never be turned away from the home I live in,” and that she replied, “No, you never will as long as I live.”</p> <p>The judge made a decree for the registration of the petitioner’s title; and the respondents alleged exceptions.</p>

<p>Tort by the administrator of the estate of Charles J. Lovett for causing the death of the plaintiff’s intestate on February 23, 1917, when he was eight years and four months of age, by knocking him down with a motor truck alleged to have been operated negligently by a servant of the defendant. Writ dated April 13, 1917.</p> <p>In the Superior Court the case was tried before Fessenden, J. The facts most favorable to the plaintiff which could have been found upon the evidence are stated in the opinion. At the close of the evidence the judge, at the defendant’s request, ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Snow and Ice, Notice. Notice.</p> <p>If one, who is injured by an improper accumulation of snow and ice upon a sidewalk in front of premises owned by one who holds the legal title as trustee for the sole benefit of a woman whom he had authorized to carry out “the detailed supervision of the property,” in good faith gives to such woman a notice in writing of the time, place and cause of the injury, which is addressed to her personally as owner of the premises and which she delivers to the trustee, and if the trustee was not prejudiced by the inaccuracy in the statement of the owner’s name nor prevented nor unreasonably delayed from receiving actual notice of the injury and of the claim, such notice may ’be found to be a compliance with the requirements of St. 1908, c. 305; 1913, c. 324.</p>

<p>Contract, What constitutes.</p> <p>If one who had a contract in writing with a corporation, which was the owner of a. mill, to remove for it a penstock, forebay and water wheels for a fixed price, ' after the making of the contract had a conversation with the owner’s manager, who, pointing to the property, said, “This is a large job and I want it done in six weeks, even if you have to work night and day; ” and if, later, the contractor,, in an interview with the manager, asked him if “that pipe,” (meaning the pipe-“that goes in over his [Its] penstock 'that had to be put in there”) would be all right, and the manager said it would, and if then the corporation prevents the-contractor from doing any work for it, such conversation and conduct, in an. action by the contractor against the corporation for loss of the contract, will not warrant a finding that the corporation agreed to employ the contractor to do anything further than to remove the old penstock, forebay and water wheels.</p>

<p>Negligence, Street railway, Crowd in subway station. Boston Elevated Baüway Company. Carrier, Of passengers.</p> <p>The Boston Elevated Railway Company is not responsible for the location and construction of the platform in the station of the Tremont Street subway in Boston, which was built by the Boston transit commission and was leased to the company, nor is it negligent if a passenger is injured while entering a car by reason of the fact that the car stopped at a curve in the platform, leaving an unusual space between the platform and the car step.</p> <p>If, when a woman passenger in the exercise of due care was attempting to enter a street car in a subway station, she was caused to fall between the car and the station platform by reason of her being caught and carried off her feet by a crowd pushing about her, and it appears that, previous to the accident, there was “always a crowd of people” who “were always pushing” at that hour of the day in that station, and that it was very hard to get a car there, such passenger ban recover for her injuries in an action of tort against a street railway company which operated the car and was in control of the subway station.</p> <p>It was not necessary, in order that the Street railway company should become in duty bound to take adequate measures to control the crowd above described, for the protection of its passengers, that the crowd should be so violent, riotous and disorderly as to endanger and disturb the public peace.</p> <p>Upon the evidence in the action above described, it was held that the plaintiff, in entering the subway station under the conditions described, had not assumed the risk of being injured by the action of the crowd.</p> <p>At the trial of the action abpve described, where there was evidence as to the habitually boisterous and turbulent character of the crowd at the station at the hour in question, the fact that an employee of the defendant at that station, called by the plaintiff, testified that “there was no crowding” and also testified that the defendant’s employees then on duty were sufficient in number to meet any reasonable demand by the assembled passengers for protection against physical injury likely to result from violent and excessive overcrowding of passengers while properly attempting to load the cars, was. held not to warrant a ruling that there, was no evidence that the defendant failed to furnish an adequate number of employees to handle the crowd nor a ruling that there was no evidence that the employees were negligent at the time of the plaintiff’s accident.</p>

<p>Petition, filed in the Supreme Judicial Court on June 25,1918, for a writ of prohibition prohibiting the judges of the Municipal Court of the City of Boston from “issuing and affixing a certificate to the execution authorizing your petitioner’s arrest” in poor debtor proceedings and directing them “to discharge said petitioner and dismiss said proceedings.”</p> <p>The petition was heard by Crosby, J., upon an agreed statement' of facts. The material facts agreed to are stated in the opinion. The single justice denied the petition; and the petitioner alleged exceptions.</p> <p>The case was submitted on briefs.</p>

Contract or tort. Writ dated April 26,1917. The declaration as amended was in two counts.

<p> Workmen’s Compensation Act. </p> <p>In a claim under the workmen’s compensation act by an employee of a town, who suffered a sunstroke when he was working for the town in a gravel or sand pit on one of the hottest days in summer, the evidence warranted findings that the banks of the pit where the employee worked attracted the extreme heat and shut off the air except from the south and that the nature of the employee’s work required him to remain at it steadily, that the time which elapsed between his first symptoms of approaching sunstroke and his collapse was inappreciable so that he had no opportunity to escape the effects of the injury caused by his exposure to the heat, and that on the day of his injury the heat in the gravel pit was greater than that to which an ordinary outdoor worker was exposed. jHeld, that a finding was warranted that the employee’s injury arose out of his employment, as it could be found that the risk of injury' by sunstroke was naturally connected with and reasonably incidental to his employment as. distinguished from the ordinary risk to which the general public was exposed from climatic conditions.</p>

<p>Practice, Civil, Ordering verdict, Requests and rulings, Exceptions.</p> <p>An exception to the denial of a motion that a verdict be ordered for the defendant upon each count of a declaration, made at the close of all the evidence at the trial of the action, must be overruled where the evidence warranted findings that the causes of action described in the different counts were distinct and not inconsistent and there was evidence warranting a verdict for the plaintiff upon each count.</p> <p>At the trial of an action of contract where the declaration contained two counts, one upon a promissory note and the other for a balance due on an accounting, and the evidence of the plaintiff warranted findings that the causes of action stated in the two counts were distinct and not inconsistent, there were but, two witnesses, the plaintiff and the defendant, and their testimony was conflicting. The defendant asked for certain rulings, correct in form, upon the question of the burden of proof. The issues were few and distinct. The jury were charged fully and were instructed in substance that, unless they believed the plaintiff’s testimony as to the note and balance, they must find for the defendant. At the close of the charge, the defendant’s counsel excepted to the “refusal to rule as I have requested.” The judge then inquired, “Anything inconsistent with your requests for instructions?” and the defendant’s counsel replied, “Yes.” Held, that, assuming that it was error for the judge to fail to give more specific rulings as to the burden of proof, the defendant’s exceptions nevertheless must be overruled since it did not appear that the error injuriously affected his rights.</p>

<p>Tort by the administrator of the estate of John F. Sullivan, for causing the death of the plaintiff’s intestate on December 3, 1915, by falling down the well of a freight elevator in a building owned by the defendants and numbered 23 on Knapp Street in Boston, by reason of the negligence of the defendants in failing to maintain in.a safe and proper condition the gate, rail or bar of the elevator well on the second floor of the building. Writ dated May 4, 1916.</p> <p>The defendants’ answer, besides a general denial, contained an allegation of contributory negligence on the part of the plaintiff’s intestate.</p> <p>In the Superior Court the case was tried before Chase, J. The material evidence is described in the opinion. At the close of the evidence the judge on motion of the defendants ordered a verdict for the defendants; and the plaintiff alleged exceptions:</p> <p>The approval of elevator regulations of the board of elevator regulations by the Governor and Council on June 29,1915, referred to in the opinion, was under authority of St. 1913, c. 806, § 7.</p>

<p> Landlord and Tenant. Assignment. Frauds, Statute of. </p> <p>In an action by a lessor against an assignee of the lessees on the covenant in the lease to pay rent, it appeared that, when the lessees had become bankrupt and thirteen months of the term of the lease were unexpired, the defendant took from the lessees an assignment of the lease and paid the overdue rent, whereupon the plaintiff gave to the defendant a receipt in writing containing the following provision: “In consideration of this payment of said rent the said lessor hereby waives all former breaches under this lease of said premises, occasioned by the non-payment of said rent and waives any right it may have to terminate said lease by reason of the bankruptcy of [the lessees].” The jury found in answer to a special question that the plaintiff’s waiver, as above quoted, was given “in consideration of the [defendant] agreeing to assume the performance of the covenants of the lease.” This finding was warranted by the evidence. The defendant contended that there was no consideration for its assumption of the covenants of the lease. Held, that the finding of the jury disposed of this contention; and that the defendant, after the assignment and its acceptance of the lease, was liable by reason of privity of estate for the rent accruing during the time that it was the owner of the leasehold interest.</p> <p>In the same case it was held that the statute of frauds had no application.</p> <p>In the same case the defendant contended that its liability for rent ended when it assigned the lease to one D. But there was evidence warranting a finding that this alleged assignment was a mere pretence and sham in an attempt to relieve the defendant from liability for the rent. It appeared that the alleged assignment never left the possession of the defendant’s counsel and that the alleged - assignee never took possession of the premises or claimed the right to do so. In answer to the special question, “Was the assignment from the [¡defendant] to D delivered to the assignee and accepted by him? ” the jury answered, “No.” Held, that the finding was warranted and that the defendant remained liable for the rent.</p>

<p>Contract against the city of Newburyport to recover compensation for services alleged to have been performed by the plaintiff after his alleged unlawful discharge by the defendant. Writ dated October 10, 1916. /</p> <p>In the Superior Court, after a demurrer of the defendant had been overruled, the case was heard by Dubuque, J., without a jury. The evidence and the finding and ruling of the judge are described in the opinion. - Nelson, referred to in the opinion, was the city solicitor. The statement mentioned was not excepted to by the plaintiff. The judge ordered judgment for the defendant and at the request of the plaintiff reported the case for determination by this court.</p>

<p>Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>The parties to an agreement in writing, if they see fit to do so, can change the original contract by a subsequent oral agreement.</p> <p>In an action by the owner of a patent for making hide-working machines to recover royalties or license fees on twenty-eight such machines, it appeared that by an . agreement in writing between the plaintiff and the defendant it was provided that the defendant should pay license fees to the plaintiff on the machines manufactured and sold by it, and that, if in any calendar year while the contract was in force the defendant should fail to pay to the plaintiff royalties or license' fees on at least twenty of the patented machines, the plaintiff might terminate the contract by giving a certain notice in writing. The plaintiff offered to show that later, after the defendant had failed to manufacture and pay license fees on twenty machines during a certain year, the plaintiff and the defendant made an oral agreement, that in consideration of the plaintiff not terminating the contract (as it had a right to do) the defendant would pay to the plaintiff license fees on twenty machines a year during the two years past and current, whether that number of machines was or was not manufactured dining those years. The presiding judge excluded this evidence and ordered a verdict for the defendant. Held, that the evidence should have been admitted, the plaintiff being entitled to recover in accordance with the terms of the contract as changed by the parties.</p>

<p>Agency, Scope of employment. Evidence, Presumptions and burden of proof, Of intention, Matters of common knowledge. Motor Vehicle.</p> <p>In an action against a corporation for personal injuries resulting from a collision of the plaintiff, when on a motorcycle, with a motor vehicle owned by the defendant and driven by one alleged to have been its employee and to have been acting within the scope of his employment, where an issue is, whether the driver was acting within the scope of his employment, and it appears that, in obeying instructions of the defendant to go between two cities named, he '■ chose to go by a route five and five tenths miles, rather than by a route three and six tenths miles long, the intention of the driver in taking the longer route is an important element to consider, and evidence thereof is material.</p> <p>Deviation by a servant from a regular course, or travelling by a longer route than is required to reach his prescribed destination in the performance of his master’s business, is not conclusive evidence that he is not then acting within the scope of his employment.</p> <p>It is a matter of common knowledge that motor vehicles can be run over smooth ways where there is little or no street traffic much more easily, safely and quietly than over rough roads or where their progress is delayed by the presence of other vehicles or by the receiving or discharging of passengers from street cars; and such matters, therefore, are proper to be considered in the action above described in determining whether a deviation by the driver of the defendant’s motor vehicle from a shorter route, which was less desirable for the. motor vehicle for the reasons above named, to a longer, more desirable route, was an abandonment of the defendant’s business.</p> <p>Upon evidence at the trial of the action above described, tending to show that the longer route was taken by the defendant’s driver with an intention to reach his prescribed destination by the quickest and best route for the motor vehicle,- it was held that a finding was warranted that the driver, when he ran into the plaintiff, was acting within the scope of his employment by the defendant.</p> <p>At the trial of the action above described, the defendant’s driver was called as a witness by the plaintiff and testified that he had taken a companion on the trip with him. There was no evidence that he had concealed this fact. The defendant attempted to introduce evidence tending to show that he had stated to one of its claim agents that he had taken such companions with him. The evidence was excluded. Held, that the exclusion was proper.</p>

Appeal to the Superior Court under [the workmen’s compensation act from a decision awarding compensation to Bernard J. C. O’Flynn, of Providence, Rhode Island, as a dependent upon the earnings of his deceased unmarried half brother Thomas O’Flynn, who lived in the part of Boston called Charlestown and was employed by the New England Bakery Company in Boston, and who died as the result of an injury received in the course of and arising out of his employment on April 29, 1917.

<p>Contract for $728.54 upon an account annexed for services as an architect. Writ dated September 25, 1917.</p> <p>In the Superior Court the action was tried before Keating, J. It appeared that the transactions upon which the plaintiff relied as the foundation of his claim took place in the spring of 1915 and the spring of 1917.</p> <p>Against an objection and subject to an exception by the defendant, the plaintiff was allowed to introduce in evidence a letter from the defendant to the plaintiff, dated September 12, 1917, and reading as follows: “As your letter indicates, you thought I would be astonished at your letter; Sometime ago you mailed me a rough sketch of a house that I later told you I would be willing to pay, including a garage, about $7,000 for. That is all I know of the matter.”</p> <p>Thereafter, and also against an objection and subject to an exception by the defendant, the plaintiff was allowed to introduce in evidence a letter from himself to the defendant, dated September 10, 1917, to which the foregoing letter was a reply, which read as follows:</p> <p>“Received a set of blue-prints last Friday morning. I have no use for same, as I have 4 sets of same design in my office now.</p> <p>“I sent a bill of $200 on account last week. Two years ago I made you some drawings of a house drawn after your own ideas alone, got figures on same, and house was not built. I did not send a bill then, simply because I expected you to go ahead later. Nothing doing until this Spring, when the subject was brought up again. I made you some plans satisfactory to you as two years ago, with the exception of slight alterations for some closet room, got figures from four reliable contractors, highest over $12,000, lowest $8,100, for house complete, which figures I mailed you by special delivery letter over a month ago.</p> <p>“I have not heard from you by letter or otherwise since, and I have been in my office every day including Sundays, with the single exception of one day.</p> <p>“Perhaps you thought I was offering my office, my time and all expense to me, to you for nothing, and to do this work according to your own ideas. I am not to blame for the high prices of labor and materials, or for the set ideas you have on plans, or the expensive price you expect to pay for land, but I have followed out your ideas on both houses, done my work properly and expect to be paid for it. I sent you a bill of $200. on account with the expectation of a quick payment, and acknowledgment of favors shown you and a hope of continuing the work later, either when prices dropped, or you found a much less expensive piece, of land, but instead I find plans, etc., on my office floor, and no check or word from you. An idea of the price paid to an Architect for work such as yours when house is not built — 3/5 of 6% .</p> <p>. 1st house $12,000.</p> <p>2nd house 8,100.</p> <p>$20,100</p> <p>__6%</p> <p>$1,206.</p> <p>3/5 of $1,206 = $723.60</p> <p>“I have at no time, either by writing or word, promised or offered to do work for you or any one else for nothing, but I did tell you that I would charge you a certain percentage for doing your work for you.”</p> <p>There was a verdict for the plaintiff in the sum of $525; and the defendant alleged exceptions.</p>

<p>Indictment, found and returned in the county of Middlesex in January, 1918, in six counts, the second count, on which the defendant Harris was convicted, charging “that Samuel C. Harris and James E. Trask, between the first day of December in the year of our Lord one thousand nine hundred and fourteen and the first day of October in the year of our Lord one thousand nine hundred and seventeen at Newton, in the County of Middlesex aforesaid, did conspire together to commit thereafter from time to time and on different occasions as opportunity therefor should offer, and not at any times then particularly set and fixed, the crime of buying, receiving or aiding in the concealment of stolen property, to wit: automobiles, which might at the time of such conspiracy have been already stolen or which might thereafter be stolen from persons not then known to said Samuel C. Harris and James E. Trask, but all of which automobiles the said Samuel C. Harris and James E. Trask then knew, or thereafter and before such buying, receiving or aiding in the concealment of such stolen property should have been accomplished, should come to know had been stolen, such crime of so buying, receiving or aiding in the concealment of property, known at the time of such buying, receiving or aiding in the concealment thereof to the persons so buying, receiving or aiding in the concealment thereof to have been stolen, being when accomplished a violation of the provisions of R. L. c. 208, § 51, of said Commonwealth and punishable by imprisonment in the State Prison for not more than five years or by a fine of not more than five hundred dollars and imprisonment in jail for not more than two years.”</p> <p>After a jury had been impanelled the defendant Trask pleaded guilty, and subsequently he was called as a witness for the Commonwealth. The defendant Harris seasonably filed a motion to quash the indictment. This motion was granted as to certain of the counts of the indictment, but was denied as to the second count. The defendant Harris thereupon filed a motion for a bill of particulars, and the district attorney filed a bill of particulars, a copy of which was annexed to the record before this court.</p> <p>The defendant Harris was tried before Callahan, J. It appeared that the defendant Harris lived at the Hotel Somerset in Boston. The defendant’s offer of the testimony of the telephone operator, mentioned in the opinion, was as follows: “I want to show that at twenty minutes of ten on the evening of the fourteenth day of November of last year, this witness, who was the operator at the Hotel Somerset, where Harris lived, received a call for Mr. Harris from a person at the other end of the telephone who said he was Mr. Trask; that she received then this message for Harris: ‘Bond has been filed for $10,000 and he is released. He will take care of you later/ ” In answer to a question from the judge the defendant’s counsel stated that he contended that the message came from Trask. The judge excluded the evidence, stating that he did so-“in the absence of any evidence that the person at the other end of the wire was Trask, other than that person’s representation.” The defendant excepted.</p> <p>The defendant, asked the judge to make seven rulings, of which the judge made all except,the fourth and gave them as instructions to the jury. The fourth ruling requested by the defendant was as follows:</p> <p>“4. The witnesses Trask, Moses, Aronofsky and Ward, being themselves indicted, testify under the strong bias of self-protection and hope of immunity. It makes no difference whether the evidence discloses a promise of immunity, this bias should be taken into account by the jury in weighing their testimony.”</p> <p>The judge refused to make this ruling, and the defendant Harris excepted. The instructions of the judge upon this point are quoted and described in the opinion.</p> <p>The judge instructed the jury to return verdicts for the defendant Harris on the first, third and fourth counts of the indictment, and submitted the case to them only upon the second count, which is quoted above. The jury returned a verdict of guilty upon this count; and the defendant Harris alleged exceptions to the denial of his motion to quash the second count of the indictment, to the exclusion of evidence and to the refusal to rule, which are mentioned above.</p>

Tort for personal injuries sustained on May 25,1918, when the plaintiff was alighting as a passenger from a street railway car of the defendant on Washington Street near the corner of Harvard Street in Boston. Writ dated July 6,1917. In the Superior Court the case was tried before Fessenden, J. ,The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for the defendant. The judge denied the motion.

<p>Workmen’s Compensation Act, Employer. Agency, Existence of relation.</p> <p>In a claim by a dependent widow under the workmen’s compensation act, it appeared that the deceased employee was employed by a construction company as the engineer in charge of a locomotive crane, that the crane was let to a contracting corporation with the employee furnished as engineer and another man furnished as fireman, to act as auxiliary to derricks and to provide motive power for getting piles from a pile yard to a wharf, that, when this crane by the order of the contracting corporation was being used with its engineer and fireman to hoist an unusually heavy engine from the deck of a lighter to a flat car, it became unbalanced by the heavy burden and turned over on its side scalding severely the engineer, who died in a few hours. Both the construction company and the contracting corporation were insured under the workmen’s eompensation act. On the evidence before the Industrial Accident Board it could have been found that the crane was a complicated machine, requiring experience and skill in its operation, that the deceased employee was an experienced engineer and that the control of the crane was left entirely to him, with no direction for its management given by the contracting corporation. The Industrial Accident Board found that the deceased employee did not become the servant of the contracting corporation in the care and management of the locomotive crane, but in this respect remained the employee of his general employer, . the construction company. The board awarded compensation to be paid by the insurer of the construction company, and this award was affirmed by a decree of the Superior Court. Held, that the question was one of fact, and, there being evidence to support the finding of the Industrial Accident Board, it could not be set aside.</p>

<p>The following order was passed by the Senate on April 2, 1919, and on April 9, 1919, was transmitted to the Justices of the Supreme Judicial Court. On April 21, 1919, the Justices returned the answer which is subjoined.</p> <p>Whereas, There is pending before the General Court a bill numbered Senate 102", a copy of which is hereunto annexed, providing that the grand jury may, upon request of the district attorney, permit to be present at an examination of witnesses in a case which it is investigating, a police officer or other person who has prepared the case, and also an interpreter for a witness unfamiliar with the English language; and</p> <p>Whereas, Grave doubt exists as to the constitutionality of said bill, in view of the decision of the Supreme Judipial Court in the case of the Commonwealth v. Harris, reported in the two hundred and thirty-first of the Massachusetts Reports, page five hundred and eighty-four; therefore, be it</p> <p>Ordered, That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court on the following important questions of law:</p> <p>(1) Would the bill above described be constitutional if enacted</p> <p>into law? i</p> <p>(2) Is it within the constitutional power of the General Court to enact a statute authorizing the grand jury, upon request of the district attorney or otherwise, to permit to be present during-its examination of witnesses a police officer or other person who-has been engaged on the preparation of the case, or an interpreter to assist in the examination of witnesses who cannot speak English, or whose knowledge of English is so deficient as to render necessary the use of an interpreter?</p> <p>Senate Bill No. 102, referred to above, was as follows:</p> <p>An Act regarding Grand Jury.</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 grand jury may, upon request of the district attorney, permit to be present at the examination of the witnesses in a case, a police officer or other person who has prepared such case.</p> <p>Section 2. The grand jury may, upon request of the district attorney, permit the use of an interpreter for a witness whose knowledge of English makes this necessary.</p>

<p>Under art. 50 of the Amendments to the Constitution, which provides that "Advertising on public ways, in public places and on private property within public view may be regulated and restricted by law,” the General Court by statute may authorize cities or towns by ordinances or by-laws to regulate and restrict advertising on public ways, in public places and on private property within public view.</p> <p>Whether an ordinance or a by-law passed by a city or town under the authority of such a statute would be in violation of the Fourteenth Amendment to the Constitution of the United States cannot be determined until such ordinance or by-law has been framed and enacted, but a statute authorizing lawful enact-, ments of this character by cities or towns would not be unconstitutional.</p> <p>A provision in a statute, regulating advertising on public ways, in public places and on private property within public view, attempting to impose “a special betterment tax” on the owner or lessee of the land on which an advertising sign or device is located, would he unconstitutional, because such statutory . provisions do not create a betterment.</p> <p>A provision in a statute giving the board of aldermen of a city or the selectmen of a town power to grant or withhold required licenses for all advertising billboards, signs or signboards, including those on all land in such cities or towns whether “within public view” or not, would be unconstitutional.</p> <p>A statute prohibiting advertising signs and devices “within three hundred feet of a public building, public memorial, public way, park, playground or other public property,” except such as refer to a business conducted within the building on which the advertising sign or device i's placed, would be unconstitutional, because the prohibition includes advertising .signs and devices on private property which are hidden from public view by intervening obstructions and is not confined to those “within public view.”</p>