Volume 233 — Massachusetts Reports

<p>Practice, Civil, Indorser of writ, Exceptions. Constitutional Law.</p> <p>Although under ordinary circumstances objection to the failure of a non-resident plaintiff in an action at law to furnish an indorser of his writ as security for costs under R. L. c. 173, § 39, is taken to have been waived if such objection is not made at the first term of court after the entry of the writ, yet, where the fact, that the plaintiff is not an inhabitant of the Commonwealth, was not disclosed on the pleadings and was not known to the defendant, this rule does not apply.</p> <p>An order made by a judge of the Superior Court, that the plaintiff in an action at law be ordered “to furnish an indorser for costs within ten days without specifying the amount that the indorser should be responsible for,” is a valid order not void for obscurity.</p> <p>Such an order cannot be declared to be void on the ground that the judge who made it refused to admit evidence offered by the plaintiff, if no evidence thus offered is set forth in the record and no exception was taken to the exclusion of any evidence offered by the plaintiff.-</p> <p>It is no ground for invalidating such an order, that the judge who made it allowed the defendant to introduce in evidence the pleadings in another action to show that the plaintiff was not an inhabitant of the Commonwealth, if no exception was taken to the admission of this evidence and there does not appear to have been any error in admitting it.</p> <p>The fact that, after the plaintiff’s failure to furnish an indorser on his writ, a motion of the defendant to nonsuit the plaintiff was continued by the judge of his own motion without solicitation on the part of the plaintiff, could give the plaintiff no ground for complaint, even if he had excepted to the action of the judge, which here he did not.</p> <p>The provisions contained in R. L. c. 173, §§ 39-43, requiring a plaintiff who is not an inhabitant of the Commonwealth to furnish an indorser of his writ as security for costs, is constitutional.</p>

<p>School and School Committee. Tax, Distribution of income tax returned to city from State. Words, “Total local tax.”</p> <p>In St. 1917, c. 209, § 1, providing in substance that, in any city, except Boston, wherein the appropriation for any department is determined by law at a certain percentage of the taxable valuation, such city shall, in addition to the amount so determined, appropriate for such department such proportion of the sum returned to the city by the State from the tax upon incomes as the appropriation so determined by law bears to the “total local tax levy of that city for the current year,” the words, “total local tax levy" mean the levy for all purposes, and not the levy for municipal purposes only.</p>

<p>Bill in equity, filed in the Supreme judicial Court on November 15, 1918, and afterwards amended, by the surviving trustee under the will of Jonathan Russell, late of Milton, for instructions.</p> <p>Clifford H. Walker, Esquire, was appointed guardian ad litem for certain minors, great-great-grandchildren of the mother of the testator.</p> <p>The suit was reserved by Crosby, J., upon the amended bill and answers for determination by the full court.</p>

<p>Contract upon a promissory note for $150. Writ in the Municipal Court of the City of Boston dated January .4,1918.</p> <p>The facts which appeared at the trial in the Municipal Court, and also the questions of law there raised, are described in the opinion. The trial judge found for the defendant and, at the request of the plaintiff, reported the case to the Appellate Division. The Appellate Division ordered judgment to be entered for the plaintiff. The defendant appealed.</p> <p>Section 51 of R. L. c. 102, known as the small loans act, is as follows:</p> <p>“A loan of less than one thousand dollars shall be discharged upon payment or tender by the debtor of the principal sum actually borrowed and interest at the rate of eighteen per cent per annum from the time said money was borrowed and a sum not exceeding five dollars for the actual expenses of making and securing the loan; but the lender shall be entitled to interest for six months at said rafe if the debt is paid beforeThe expiration of that period. All payments in excess of said rate shall be applied to the discharge of the principal, and the borrower shall be obliged to pay or tender only the balance of the principal and interest, at said rate, due after such application.”</p>

<p>Tort for alleged alienation of the affections of the plaintiff’s wife by the defendants. Writ dated June 30,1917. •</p> <p>There was a motion for an indorser of the plaintiff’s writ as security for costs, the plaintiff being an inhabitant of the State of California. The plaintiff was ordered to furnish an indorser for costs without specifying the amount for which the indorser should be responsible. The plaintiff having failed to comply with the order within ten days as required by its terms, upon motion of the defendants the plaintiff was nonsuited with costs. The plaintiff alleged exceptions similar to those alleged in the case of Keown v. Hughes, ante, 1.</p>

<p>Order. Assignment. Contract, Consideration. Equity Jurisdiction, To enforce satisfaction by debtor of order of creditor to pay part of debt to a third person. Equity Pleading and Practice, Decree.</p> <p>An order by a building contractor directing the owner of a building which he was erecting to pay to a subcontractor a certain sum “out of the amount coming to me on my contract . . . same being the balance due” the subcontractor “on wiring contract,” is as between the parties an assignment when delivered to the owner.</p> <p>Where, more than four months after the delivery to the owner of the order above described and without the order ever having been accepted by the owner, the contractor is adjudicated a bankrupt, the order, if it appears that it was made in good faith, is valid as an assignment and enforceable in a suit in equity by the subcontractor against the owner, the contractor and the contractor’s trustee in bankruptcy, although it is an order by a creditor upon his debtor to pay less than the whole of the debt to a third person, which could not be enforced in, an action at law.</p> <p>In such a suit a proper decree is one directing the owner to pay to the subcontractor the amount of the order with interest from the filing of the bill, and to pay the balance of the debt due to the contractor to his trustee in bankruptcy.</p>

<p>Contract by the assignees for the benefit of creditors of Eugene N. Foss for $609.56 alleged wrongfully to have been withheld by the defendant from the sale of securities pledged to it to secure a note, hereinafter described. The third count of the declaration was for “money received by the defendant to the plaintiffs’ use.” Writ in the Municipal Court of the City of Boston dated March 21, 1918.</p> <p>The note in question was as follows:</p> <p>“Boston, Mass., July 6th, 1917</p> <p>$25000.00</p> <p>For value received, I, E. N. Foss, promise to pay the Boston Penny Savings Bank, or order, at any Bank in Boston, Twenty-five thousand Dollars, in twelve (12) months from date, with interest at the rate of 5% per centum per annum, payable semi-annually in advance, and as collateral security for the payment of this or any other direct or indirect liability or liabilities of ours to the holder hereof, due or to become due or that may hereafter be contracted, we have deposited with, and hereby pledge to said Institution the following property, viz.: 100 shrs. Boston Elv. By. Co.: 100 shrs. Erie Common: 400 shrs. Long Island R. R. Co.: 1080 shrs. East Boston Co.</p> <p>And we hereby agree that whenever the market value of said securities, or of any securities that may at any time be held as collateral, according to the public quotations or in the opinion of the President or Treasurer of said Institution shall fall below the sum of Thirty thousand dollars, we will immediately deposit with, and pledge to said Institution additional securities or substitute other securities for those herein named, or for any securities that have been previously substituted for those herein named, sufficient to make the whole equal, in market value, according to the public quotations and in the opinion of said President or Treasurer, to that sum, and satisfactory to the President or Treasurer or anyone acting on behalf of said Institution, such securities to be held upon the same terms as those above described. In case we fail so to do or a petition in bankruptcy be filed by or against us, or we make a general assignment for the benefit of our creditors, or we sell out our business, or any one of our partners withdraws from our firm, or our authority to pledge any of the securities held as collateral be denied, this note shall become due and payable immediately, anything herein to the contrary notwithstanding, and we hereby promise to pay the same immediately, and in case of the nonperformance of this promise or on the nonpayment of any of the liabilities aforesaid, we hereby authorize and empower the said President or Treasurer or anyone acting on behalf of said Institution to sell any or all of the securities then held, on that day or on any later day, at his option, either by public or private sale, or at any Broker’s Board, without advertisement or giving notice to the undersigned or any other person; it being mutually agreed that the President or Treasurer of said Institution, or anyone acting on its behalf, or said Institution, may purchase at said sale; that the proceeds of said sale after deducting all costs and expenses are to be applied to the payment of any or all the liabilities aforesaid, with interest thereon to maturity; and that the balance of money or any securities which then remain unsold (if any) shall be returned to us or our legal representatives. And it is hereby agreed that any notice sent by mail to our place of business or residence shall be deemed to have been received by us in the usual course of inail and that all authority and power given above is also hereby given to any holder or holders of this note, and may be exercised by them or by anyone acting on their behalf as well as by the said President or Treasurer or anyone acting on behalf of said Institution and shall apply to any securities that may be substituted for or added to those above described. And it is further agreed that the said President or Treasurer or anyone acting on behalf of said Institution may at any time before the maturity of this note demand the payment of the whole or any portion of said money, provided the same, in the judgment of the said President or Treasurer or anyone acting on,behalf of said Institution, is wanted to pay depositors, and we hereby agree to promptly make such payment should such demand be made.</p> <p>[Signed] E. N. Foss.”</p> <p>, The case was heard upon an agreed statement of facts substantially as follows: .</p> <p>, On July 6, 1917, Eugene N. Foss borrowed $25,000 from the defendant, giving to it the above note and the securities therein described. The interest for the first six months was discounted in advance by Mr. Foss at the time the loan was made, and an indorsement to that effect then was made on the back of the note. On November •'9, 1917, Mr. Foss made a general assignment to the plaintiffs for the benefit of his creditors. Shortly thereafter, in the exercise of the power given by the note, the defendant sold the securities pledged as collateral, realizing from the sale the sum of $25,471.40. No question was raised as to the right of the defendant to sell the securities pledged as collateral. The defendant applied the proceeds of the1 sale to ‘the payment of the interest for the second six months’ period and to the payment of the principal of the note, the defendant contending as a matter of law that its application of the proceeds from the sale of the collateral in this manner was provided for in the special form of note. The sum received from the sale was insufficient to pay both the principal . and the interest for the second six months.</p> <p>The plaintiffs, as assignees, claimed $471.40, being that part of the proceeds of the sale of the pledged securities retained by the defendant on account of the interest for the second six months, and also $138.16, being the proportional part of the interest for the first six months’ period discounted in advance, namely, for the period from the date of sale of the securities to the expiration of the first six months’ period of the note.</p> <p>In the Municipal Court the judge found for the plaintiffs in the sum of $615.95 and, at the request of the defendant, reported the case to the Appellate Division, who ordered the report dismissed. The defendant appealed.</p>

<p>Sale, Delivery and acceptance, By sample.</p> <p>Goods, purchased by sample, were ordered by the buyer to be shipped to his address by a certain expressman, the express charges to be paid by the buyer. While the goods were in the possession of the expressman, they were destroyed by fire. In an action by the seller against the buyer for the purchase price, it was held, that the title to the goods passed to the buyer upon delivery to the ' expressman.</p> <p>It further was held that, under the circumstances above described, the rule that, where goods are sold by sample and are selected and shipped by the seller, the buyer has a right of inspection and verification before acceptance, so that, until such right of inspection is exercised or waived, there can be no acceptance, was not applicable, because the title to the goods passed when they were delivered to the carrier chosen by the buyer.</p>

<p>, Bill in equity, filed in the Superior Court on August 31, 1915, and afterwards amended into an action at law as stated in the opinion.</p> <p>In accordance with the decision reported in 228 Mass. 584, judgment was entered against the defendant. Procee_dings against the trustee, the American Express Company, are described in the opinion. That trustee admitted that it should be charged in the sum of $10,997.55.</p> <p>Article X of the agreement between the railroad company and the American Express Company, mentioned in the opinion, was as follows:</p> <p>“The Express Company, for and in consideration of the accommodations, services, rights and privileges herein specified, hereby agrees to pay to the Railway Company fifty-five per cent (55%) * of the gross revenue derived by the Express Company on all business transacted by it upon the lines embraced in this agreement, and the Express Company guarantees that the amount so paid to the Railway Company will, during each year of the term of this agreement, which is understood, so far as guarantee is concerned to begin with February 1st, 1913, at least equal the sum of three hundred seventy-two thousand dollars ($372,000.00) and a proportionate sum for the fraction of any year should any such fraction of year obtain during the continuance of this agreement.</p> <p>“The payments hereinbefore provided for shall be made as follows:</p> <p>“The Express Company shall pay monthly, on or before the tenth day of each month, to the Treasurer of the Railway Company, as advance compensation for the accommodations, services, rights and privileges provided hereunder during the preceding month, the sum of thirty-one thousand dollars ($31,000.00).</p> <p>“The Express Company will render as soon as reasonably practicable, but not later than one hundred and twenty (120) days after the end of each month, a certified statement showing the gross revenue derived by it upon business transacted by it during such month, upon the lines embraced in this agreement, and if fifty-five per cent (55%) of the gross revenue shown by said statement shall, exceed the sum already paid to the Railway Company as an advance payment for the said month, the Express Company will forthwith pay to the treasurer of the Railway Company the amount of such excess. If, when all the said monthly statements for the twelve months’ period ending January 31st, 1914, shall have been rendered by the Express Company to the Railway Company, it shall appear that the sums paid by the Express Company to the Railway Company for such twelve months’ period exceed fifty-five per cent (55%) of the gross revenue derived by the Express Company as aforesaid, then the Railway Company will repay to the Express Company the amount of such excess, unless such repayment would reduce the total amount paid hereunder to the Railway Company by the Express Company for the said twelve months’ period below the guaranteed sum of three hundred seventy-two thousand dollars ($372,000.00), and in such event the Railway Company will repay to the Express Company only the amount received by the Railway Company hereunder for such twelve months’ period in excess of the said sum of three hundred seventy-two thousand dollars ($372,000.00). A similar adjustment shall be made between the parties hereto, as soon as all the monthly statements shall have been rendered by the Express Company to the Railway Company for each succeeding twelve months’ period during the term of this agreement; and also as soon after the termination of this agreement as the Express Company shall have rendered to the Railway Company monthly statements for the period elapsing since the end of the twelve months’ period for which the last adjustment was made, a final adjustment between the parties hereto, shall similarly be had.</p> <p>"In the compilation of such monthly statements, the gross revenue from express matter carried by the Express Company only upon the lines of railroad covered by this agreement shall be deemed to be the whole amount received by the Express Company from such matter, but shall not include charges due or paid to other companies or persons, or for express or transportation service on other lines not covered by this agreement; and, further, that in all cases where express matter shall have been carried by the Express Company partly upon the lines of railroad covered by this agreement and partly upon other lines, the gross revenue to be accounted -for by the Express Company, as provided for herein, shall be divided between the lines covered by this agreement and other railroad or transportation lines over which the Express Company operates, on a rate prorate of the merchandise rates of the Express Company between the points of origin or destination on lines of railroad over which the Express Company operates, other than those covered by this agreement, and similar rates from or to said junction points to destination or originating points on the lines covered by this agreement.” [Here followed an illustrative example.]</p> <p>Article XIV of that agreement, also mentioned in the opinion, was as follows:</p> <p>“This agreement is subject to nil existing and future Federal and State laws and to all rules and orders by any board, commission or body having competent authority to regulate either of the parties hereto, or the traffic covered by this contract. In case ' it shall be found to conflict with any such law, rule or order, valid as against it, it shall be modified to conform thereto. In case of the substantial impairment of the benefits to either party herein contemplated, to such an extent that a readjustment of terms shall not be mutually satisfactory, either party shall have the right to terminate this contract upon a reasonable notice of not less than ninety (90) days to the other.”</p> <p>On motion of the plaintiff, Chase, J., ordered the trustee charged in the sum of $50,754.09. The trustee appealed.</p>

<p>Bill in equity, filed in the Superior Court ón July 23, 1918, to enforce a decree of a New Jersey court in chancery in separate maintenance proceedings.</p> <p>The decree of the New Jersey court was as follows:</p> <p>“This cause coming on to be heard in the’presence of Howe & Davis, Solicitors for and of counsel with the complainant, and in the presence of Ralph E. Lum, Esquire, Solicitor for and of counsel with the defendant, Whereupon, and upon reading the bill of complaint, proofs and report of Hugh B. Reed, Esquire, one of the Special Masters of this Court to whom by a previous order made in this cause it was referred to take depositions and other evidence,' and to report, together with his opinion thereon, on the matter of alimony herein; from which and from the other proof produced it now appears to the satisfaction of the Chancellor that the complainant, Anna G. White, and the defendant J. Louis White, were lawfully married on or about October 25, 1899; and that the defendant, without any justifiable cause, abandons the complainant and separates himself from her and refuses, and neglects to maintain and provide for her; and that the defendant was personally served with process in this State;</p> <p>“It is thereupon, on this Sixteenth day of February, 1918, by his Honor, Edwin Robert Walker, Chancellor of the State of New Jersey, Ordered, adjudged and decreed that the defendant, J. Louis White, do pay to the complainant, Anna G. White, or to her Solicitors, the sum of Ten dollars per week from and after the date of the filing of the bill of complaint in this cause for and towards the support and maintenance of the complainant and her infant child, J. Louis White, Jr., who is now in the custody of the complainant, and that the sums heretofore paid by the defendant for and towards the support of the complainant and her said infant child, J. Louis White, Jr., under order of the court heretofore made on July 17, 1917, shall be credited, upon the payments directed to be made under this order.</p> <p>“And it is further ordered, adjudged and decreed, that a copy of this decree be served forthwith upon the defendant, or his solicitor, and that within ten days after said service, the defendant do give bond to the said complainant in the sum of One thousand dollars, with sufficient surety or sureties, to be approved as to form and security by William A. Lord, Esquire, one of the Special Masters of this Court, for the punctual payments of the alimony and maintenance by this decree awarded to be paid, at the time and in the manner in this decree directed, and upon neglect or refusal of said defendant to give said bond, within the time so specified, or upon his default or that of his surety or sureties to pay the said sum or sums when the same shall fall due according to this decree, that the complainant be at liberty to apply to this Court to award and issue process of sequestration, or for such other process or order, as this Court may, under the circumstances, deem equitable and just, and as may be consistent with the power and authority of this Court.</p> <p>“And it is further ordered, adjudged and decreed, that the said defendant do further pay to the complainant, or her solicitors, the costs of this suit to be taxed, and also the sum of One hundred dollars, which is hereby adjudged and decreed to be a reasonable counsel fee for the counsel of said complainant (in addition to the counsel fee allowed by said order of July 17, 1917, amounting to $100) and that the said complainant do have execution for said costs and counsel fee according to the practice of this Court.”</p> <p>In the Superior Court a decree was entered directing the defendant to pay to the plaintiff $1,435.09 and $17.89 costs, and that execution issue therefor. The execution not being paid, the plaintiff, after it was served upon the defendant, moved that the defendant be adjudged in contempt.</p> <p>The motion was heard by Aiken, C. J., who ruled “that the Superior Court had no jurisdiction to punish the defendant for contempt in failing to pay money according to a decree of that court, when that decree is based upon a decree of a New Jersey court in separate support or divorce proceedings in New Jersey,” and reported the case for determination by this court.</p>

<p>Two actions of contract, the first action being for $222.91, the purchase price of ten bales of oil mill motes alleged to have been sold and delivered to the defendant, and the second action being for damages due to a refusal of the defendant to carry out the terms of a sale to him of twenty-three thousand pounds of willowed picker, a quality of damaged cotton. Writs in the Municipal Court of the City of Boston dated March 6, 1917.</p> <p>In the Municipal Court the cases were tried together.</p> <p>The evidence in the second action on the question of damages ■ was as follows: Thé plaintiffs testified that there was no general market price for the willowed picker, but that in early January,. 1917, the price had advanced and the goods were worth from six to six and a half cents per pound. The defendant testified that there was a market price in the latter part of 1916 for willowed picker in the kind and quality purchased by him from the plaintiffs; that in the fall and winter of 1916 it was never over four and three quarters cents per pound, and that it fluctuated in the fall of 1916 between four and one half and four and three quarters cents per pound; and that in January, when the market was somewhat stronger the willowed picker was about four and three quarters cents per pound; that there were many grades of willowed picker, probably two dozen, of varying color and staple and mainly dependent upon the foreign substances in the picker; that the market price of the picker in question had never been as high as five and three quarters cents per pound in the latter part of 1916. Two experts in the cotton waste business testified for the defendant that there was a recognized market price on willowed picker, that the willowed picker in question was never above five cents per pound the latter part of 1916, and that it fluctuated between four and one quarter cents and four and three quarters cents per pound. One of these testified that the price might vary in accordance with the needs of the buyer, and such variation might be three quarters to one cent per pound, depending also upon the grade of the particular lot. On the question of damages in the second action the judge ruled and found as follows: “The measure of damages is the difference between the market price at the time and place of delivery, and the contract price, which I fix at .0065 per pound. 23,000-times .0065 equals $149.50.”</p> <p>Other material evidence and certain findings of fact by the judge are described in the opinion.. The judge found for the plaintiffs in both actions, in the first in the sum of $229.13, and in the second in the sum of $149.50, refusing certain requests of the defendant for rulings raising the questions described in the opinion; and at the request of the defendant reported both cases to the Appellate Division.</p> <p>The Appellate Division made an order in the first action vacating the finding for the plaintiffs and ordering judgment for the defendant, and the plaintiffs appealed.</p> <p>In the second action the Appellate Division ordered that the report be dismissed; and the defendant appealed.</p>

<p>Pledge, Sale on default. Equity Jurisdiction, To redeem from sale of personal property by pledgee.</p> <p>In a suit in equity by a corporation to set aside a sale by the defendant on default of bonds of the plaintiff of the face value of $1,500 pledged to the defendant to secure the payment of a note of the plaintiff for that amount, it appeared that by the terms of the note the defendant was authorized to sell the bonds, "either at public or private sale,” or otherwise at his option on the non-payment of the note, and to purchase at any such sale, that the defendant had recovered judgmeat against the plaintiff in an action on the note, and thereafter had sold the bonds held as collateral at public auction and bought them himself for $15. The plaintiff contended that the sale was not made in good faith. There was evidence on which it could be found that demand had been made for the-payment of the note beforedts maturity and that the defendant then was informed by the plaintiff, that it would be unable to take care of its note by reason of the foreclosure of its property by the trustees under the mortgage securing its bonds, that the bonds held as collateral were retained by the defendant until more than a year after the maturity of the note, that notice in writing was given to the plaintiff-of the time and place of the sale of ,the bonds, which was to be held two months after the notice, that no reply to this notice was received and no effort was made by the plaintiff to protect its interests, that the defendant ^ndeavored before the sale, but without success, to get an offer for or quotation on the bonds, and that he gave notice of the sale to several persons who he thought might be interested, including one of the trustees who were in possession of the plaintiff’s property under the foreclosure. There was nothing to show that there was any market value of the bonds. No place of sale was specified in the note and the bonds were sold at the defendant’s office in a town near Boston. There was no newspaper advertisement of the sale and only one person other than the defendant and the auctioneer was present thereat. The trial judge found that the sale was made in good faith without intention to take advantage of the plaintiff and in the exercise of reasonable care, and made a decree dismissing the bill. On appeal it was held that the findings of the judge were, warranted by the evidence and were not plainly wrong.</p>

<p>Election. Equity Jurisdiction, To restrain prosecution of action at law. Practice, Civil, Equitable defence. Waiver.</p> <p>In a suit in equity, by one as the surviving executor of the will of his father and also as devisee under that will against his brother; to enjoin the further prosecution by the defendant of an action at law on an agreement in writing executed by the plaintiff’s testator about seventeen years before his death, it appeared that by the agreement sued upon in the action at law the testator promised that, if the present defendant would stay on the testator’s farm and manage it for him in his old age, the testator would give the present defendant his homestead place, all his adjoining meadow, the “Knight” pasture, the “Highfield” pasture and all his live stock and farming implements. By a will executed more than seven years later and proved on the death of the testator nearly ten years after its execution, the testator gave the homestead place to the plaintiff, divided the “Knight” pasture and the "Highfield” pasture between the plaintiff and the defendant and gave to them his live stock and farming implements in equal shares, expressing a desire that his two sons should occupy the homestead and farm together as long as they could agree to do so. He gave the defendant four different lots of land not mentioned in the agreement and also a substantial amount of personal property not there mentioned. The defendant expressed no dissatisfaction with the will and shortly after its allowance took possession of the property devised and bequeathed by it to him and proceeded for several months to occupy and manage the farm jointly with the plaintiff. Afterwards the brothers separated and divided the live stock and farming implements and the defendant kept and continued to occupy and use as his own the property devised and bequeathed to him by the will. More than a year after the testator’s death the defendant found the agreement in writing and brought the action at law upon it against the plaintiff and another as the executors of the will. In this action the plaintiff as one of the defendant executors did not set up the equitable defence that the present defendant was precluded by his election in accepting the benefits of the will from setting up the agreement inconsistent with its provisions, and the plaintiff obtained a verdict, exceptions of the defendant being overruled by this court. Held, that the defendant had elected to accept the benefits of the will and thereby had lost his right to' enforce the provisions of the earlier contract which would prevent its operation, and that the plaintiff was entitled to an injunction restraining the defendant from further prosecuting his action at law.</p> <p>In the same case it also was held that the plaintiff, who in the action at law was sued as one of the executors, did not waive his right to assert his individual claim as devisee and legatee under his father’s will by failing to set up as executor in the action at law the equitable defence of election under E. L. c. 173, § 28, as amended by St. 1913, c. 307.</p> <p>It also was held that for the reason given above a denial in the action at law of a motion of the present plaintiff as one of the executors for a new trial in which to set up the principle of election did not affect the plaintiff’s individual right to relief in the present suit.</p> <p>In the same case it was said that it was not necessary to determine what might have been the effect of these matters if the present suit had been brought by the plaintiff merely as executor.</p>

<p>Appeal of James F. Purcell from a decre^ of the Probate Court for the county of Middlesex, granting to Mary J. E. Purcell and John G. Brackett, special administrators of the estate of James Purcell, late of Arlington, appointed to serve while an appeal was pending from a decree of said Probate Court allowing the alleged will of James Purcell in which the petitioners were named as executors, authority to appear in and prosecute a suit in equity brought by James Purcell and pending in the Supreme Judicial Court seeking a reconveyance of a farm in Arlington, which it was alleged that the testator was induced by the fraud and undue influence of his three sons, James F. Purcell, Edmund J. Purcell and Daniel A. M. Purcell to convey to them.</p> <p>The appellant in support of his appeal filed the following objection to the decree: “The appellant says that the said Probate Court had no power or authority under the R. L. c. 137, §§ 10,11, to enter said decree granting authority to the special administrators to institute proceedings in equity for the purpose of setting aside a deed of real estate given by the deceased to his sons, on the ground that said deed was procured by fraud or undue influence.” The case was heard by Carroll, J., who made a final decree affirming the decree of the Probate Court granting the authority prayed for. The appellant, James F. Purcell, appealed.</p>

<p>Petition, filed, as amended, on November 17, 1917, by the owner of certain parcels of land on Second Street in the part of Medford known as Wellington, praying for a writ of certiorari to quash the proceedings attempting to assess a betterment upon the said land of the petitioner for the laying out of Second Street.</p> <p>The case was heard by Garroll, J. The material facts which' appeared by the record are stated in the opinion. The single justice ordered that the writ should issue as prayed for, and at the request of the respondents reported the case upon the petition as amended and the answers for determination by the full court.</p>

<p>Appeal from a decree of the Probate Court for the county of Suffolk allowing the will of Catharine Crass, late of Boston.</p> <p>A motion in limine, described in .the opinion, was heard by Carroll, J., and by his order an interlocutory decree was entered denying it, from which an appeal was taken. Thereafter a final decree was entered affirming the decree of the Probate Court and remanding the case to that court for further proceedings.</p>

<p>Contract, What constitutes, Performance and breach. Bail. Words, “ Bail,” “ Recognizance.”</p> <p>No action can he maintained by ¡a surety company upon a contract in writing to indemnify it against loss which it might incur by reason or in consequence of having executed a bail bond to secure the release of one under arrest in Connecticut, if it appears that the bail bond, when presented to the clerk of the court in Connecticut, was refused by him and that the prisoner, instead of being released by reason of the bond, was released upon the personal recognizance of an officer of the surety company.</p> <p>Difference between a bail bond and a recognizance pointed out.</p>

Contract upon an agreement in writing for the purchase of real estate by the defendants. Writ in the Municipal Court of the City of Boston dated March 29, 1918. The evidence at the trial in the Municipal Court is described in the opinion. At the close of the evidence, the defendants asked for rulings which, with the action of the judge therein, were as follows: “1. On all the evidence, the plaintiff is not entitled to recover.” “Not given.” “2.

<p>Negligence, Of physician and surgeon. Physicians and Surgeons. Practice, . Civil, Judge’s charge. Evidence, Presumptions and burden of proof.</p> <p>At the trial of an action against a physician and surgeon for personal injuries alleged to have resulted from negligence of the defendant in treating the plaintiff, it appeared that in an accident the plaintiff had sustained a broken collar bone and a severe injury to a network of nerves around the shoulder called the brachial plexus. The defendant admitted that he so diagnosed the injury within a few days after it occurred. He treated the plaintiff at a hospital for three weeks and then directed him to go to another physician for another kind of treatment, but at no time advised an operation. The treatment was ineffectual and the • plaintiff’s arm began to wither. After six weeks of treatment, the plaintiff went to another hospital, where an operation was performed which was unsuccessful. There was conflicting testimony as to whether an operation, performed upon the plaintiff within a few days after the injury, probably would have restored the use of the arm or some of it. There also was evidence that ordinary surgeons in the locality where the defendant practised his profession had the skill necessary to perform the required operation. Held, that a verdict for the plaintiff was warranted.</p> <p>In the action above described, it also was held, that the liability of the defendant was not to be determined by the jury upon consideration of contingent, speculative or possible results of an operation which might have been performed upon the plaintiff to remedy or mitigate the consequences of the injury to the nerves, but only upon proof by a fair preponderance of evidence that it was reasonably probable that such a result would follow an operation, performed by the defendant with the ordinary skill and ability of surgeons practising in localities similar to that where the defendant undertook to practise his profession.</p> <p>Exceptions by the defendant to certain portions of the charge to the jury in the action above described were sustained because such portions of the charge violated the principle of law above stated.</p>

<p>Equity Pleading and Practice, Master’s report, Appeal. Equity Jurisdiction, To' reach and apply property fraudulently conveyed. Fraud, Against creditors. Wrongdoer without Remedy.</p> <p>Where in a suit in equity objections were filed to the report of a master but no exceptions founded on them were filed and the case came before this court on an appeal from a final decree, the evidence not being reported, it was ■pointed out that the findings of the master must be taken as true and that the only question was whether the final decree was warranted on the pleadings and the findings of the master.</p> <p>In a suit in equity against a business corporation to reach and apply to the payment of a debt to the plaintiff property of the principal defendant conveyed to a new corporation in fraud of the creditors of the principal defendant, it was found by a master that a certain person was the president, treasurer and a director of the principal defendant and was the holder of all its capital stock except one share, and that under the by-laws and a vote of the directors this controlling officer and stockholder had. control of the business and property of the principal defendant, that this controlling officer and stockholder, being in financial difficulties, by reason of which his individual property and that of the principal defendant were attached, in an attempt to put the property of the principal defendant out of the reach of the plaintiff and its other creditors, organized the new corporation, which took possession of the assets and plant of the principal defendant and continued in the same business in the same place, with the same machinery, fixtures and merchandise, without paying anything for such assets and without complying with St. 1903, c. 415, relating to sales of merchandise in bulk, and that the new corporation in order to maintain its credit paid the merchandise creditors of the principal defendant out of the accounts and notes receivable of that defendant. The master found in conclusion that the new corporation was nothing but the principal defendant operating under another name and that the conveyance and taking over of the assets of the principal defendant were a fraud on the creditors of that defendant. He also found that at the time of the hearing no property then in the possession of the new corporation could be positively identified as having belonged formerly to the principal defendant. The-trial judge found that the transfer was a fraud on the creditors of the principal defendant, in which the new corporation participated, and that the new corporation was liable to the plaintiff, and also found that, because of intentional fraud on the part of the new corporation, that corporation was not entitled as against the plaintiff to an allowance for amounts paid by it to the merchandise creditors of the principal defendant. Held, that on the facts found by the master the findings of the judge were warranted; ’ ■ that the transfer of the property and assets of the principal defendant was a fraud upon the creditors of the principal defendant; and accordingly that the property in the hands of the defendant new corporation could be applied in satisfaction of the debt of the principal defendant to the plaintiff creditor.</p> <p>In the same ease it was held that the defendant new corporation, having participated actively in the fraud, could not be relieved from the consequences of its fraudulent conduct, and therefore could not be allowed for the amounts that it had paid in satisfaction of the claims of the merchandise creditors of the principal defendant, such payments having been made in pursuance of a dishonest purpose'to defraud the other creditors of the principal defendant and to maintain its own credit.</p> <p>In a similar suit in equity brought by a trust company, which had discounted for the controlling officer and stockholder three notes of the principal defendant, it was contended by the defendant new corporation that it was not liable to the trust company because the proceeds of these notes were applied by such controlling officer and stockholder to,his individual business. It was not found by the master that the proceeds were so applied; but it was said, that, if that fact had appeared and if it were assumed that that defence was open to the defendant new corporation, the plaintiff trust company still would have been entitled to recover the amount of these notes from the defendant new corporation, because the master found that "these notes . . . were all ordinary commercial paper, with nothing in their appearance or in the circumstances surrounding their execution and negotiation to put the trust company officials on inquiry, or cause them to believe or suspect that the [principal defendant] appeared thereon as an accommodation maker (as claimed), that the proceeds of these notes were being diverted from the corporation by [the controlling officer and stockholder] (if such was the fact), that he intended so to use them, or that his use of the name of the corporation in connection therewith as above was unauthorized.”</p> <p>Tn the same case it was pointed out that, the notes having been discounted by the trust company in good faith in the usual course of business at the request of the controlling' officer and stockholder, acting in behalf of the principal defendant as its treasurer and in accordance with its by-laws, the circumstance that the proceeds of the notes were credited to his individual account, and the other facts found by the master, fell far short of a finding that the plaintiff trust company was to be charged with knowledge that the proceeds were applied to the individual business of the controlling officer and stockholder, and that the master was warranted in finding that the trust company had no reason to believe that the proceeds .were not to be used for the benefit of the principal defendant.</p>

<p>Bailment. Conversion. Agency, Evidence of authority. Evidence, Of agency.</p> <p>A bailee of chattels, who delivers the chattels to a person not authorized by the owner to receive them, is liable to the owner for a conversion of the goods, whether he was negligent or not.</p> <p>In an action by the owner of furniture against the proprietor of a warehouse in which the furniture was stored for a conversion of a part of the goods, there was evidence that the plaintiff instructed an auctioneer, to whom she was referred by the defendant, to obtain from the defendant certain specific articles of her furniture, and that the auctioneer obtained from the defendant all the plaintiff’s goods stored there and sold them. Held, that the plaintiff was entitled to go to the jury, because the auctioneer was a special agent with limited authority and the defendant, before delivering all the plaintiff’s goods to him, was bound to ascertain the nature and extent of his authority.</p> <p>In the case above described it also was held that the acts and declarations of the auctioneer plainly were incompetent to prove his authority or the extent of it.</p>

<p>Negligence, Employer’s liability, In operating pile driver, Res ipso loquitur.</p> <p>In an action at common law by an administrator against the employer of the plaintiff’s intestate for personal injuries of the plaintiff’s intestate sustained before the provisions of the workmen’s compensation act relating to liability took effect, there was evidence that the plaintiff’s intestate was set at work in the operation of a pile driver in a pond of water ten or twelve feet deep, the intestate standing on a plank that was laid across two pieces of timber which extended forward on either side of the pile driver, that it was the duty of the intestate to guide a follower, which was a piece of timber with a spike on the end of it that fitted into a hole in the top of each pile, while the hammer striking the follower drove the pile to the required depth, that a pile had been driven, and that then “they started to pull up the follower and it came up suddenly without any warning to him with a jerk and that it jumped up on the upper end and struck a cross piece that was across the front part of the pile driver frame,” and, "when it struck that, the foot of it bounded outward and struck the plank on which [the intestate] was standing, knocking it out from under his feet and knocking him over in a somersault shape so that he fell head first, and came in contact with the pile striking the right side of his head.” It did not appear that the follower ever before came up “with a jerk,” and there was nothing to explain why it jumped out at this time, and there was no evidence that the construction or arrangement of the derrick that hoisted the follower was such that the employer had any reason to apprehend such an occurrence as resulted in the intestate’s injuries. Held, that there was no evidence of negligence on the part of the defendant employer.</p> <p>In the case above described it also was held that this court could not say that the accident was one which in the ordinary experience of mankind would not have happened without negligence on the part of the employer or of one for whose negligence he was responsible, and consequently that the doctrine of res ipso loquitur had no application.</p>

<p>Poor Debtor. Evidence, Judicial record, Presumptions and burden of proof. Waiver.</p> <p>In an action against the surety on a poor debtor’s recognizance for an alleged breach of the recognizance by the debtor in failing to deliver himself up for examination within thirty days from the day of his arrest, an application in writing to take the oath for the relief of poor debtors purporting to be signed in behalf of the debtor, which is no part of the record, offered in evidence by the plaintiff, must be excluded.</p> <p>In an action against the surety on a poor debtor’s recognizance, where the record in the poor debtor proceedings shows that the debtor delivered himself up for examination in accordance with R. L. c. 168, § 30, on a day within thirty days from the day of his arrest, and gave notice of his desire to take the oath for the relief of poor debtors, this record is conclusive and binding upon the parties and cannot be contradicted or controlled by extrinsic evidence.</p> <p>Accordingly in such an action, where the record of the poor debtor proceedings shows that the debtor on a certain day within thirty days from the day of his arrest personally appeared in court and made the application to take the oath, the plaintiff cannot be permitted to testify that the debtor told him that he never had been in the poor debtor session before the day finally fixed for the hearing, which was a month and a half later than the day of his application.</p> <p>In an action against the surety on a poor debtor’s recognizance the burden is on the plaintiff to show that there has been a breach of the recognizance, under which the debtor agreed to deliver himself up for examination within thirty days from the date of his arrest and abide the order of the court.</p> <p>A poor debtor in surrendering himself and making his application need not be in the actual presence of the magistrate, if the court is in session and the magistrate is at hand and is readily accessible for the transaction of such business as properly may be presented to him. In the present case it was held that the fact, that when the debtor appeared and made the application to take the oath the magistrate was not in the court room but was in the lobby adjoining and did not see him personally, was immaterial.</p> <p>In an action against the surety on a poor debtor’s recognizance where the'evidence showed that the magistrate was present when the debtor appeared in court within thirty days from his arrest and made application to take the oath and that on the day finally fixed for the hearing the debtor and the creditor, with counsel, were all present in court at the appointed time and that the creditor had ample opportunity to examine the debtor but declined to do so and left the court room with his counsel, it was said that it was unnecessary to determine whether the creditor’s counsel by his appearances at the hearings and other acts, without raising any objection to the regularity of the proceedings, had waived the right to object to any failure of. the debtor properly to surrender himself for examination or to any want of jurisdiction in the court over the person of the debtor, because as matter of law the evidence did not warrant a finding that there had been any breach of the recognizance.</p>

Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board refusing additional compensation to Salvatore Amodio, employed as a quarryman by John S. Lane and Son of Westfield, who was injured in the course of his employment on June 30, 1914, and was awarded compensation by a decision of the board made on May 17, 1915.

<p>Motor Vehicle, Registration. Trespass. Corporation. Agency, Scope of employment. Nuisance. Practice, Civil, Exceptions. Waiver. Words, “ Nonresident.”</p> <p>A corporation, which was incorporated under the laws of the State of Maine and which for more than thirty days has had several places of business in this Commonwealth and also one in New Hampshire and has executive offices in Boston but none in New Hampshire, does not come within the definition of ‘inomI resident,” given in St. 1914, c. 204, § 1, under the provisions of the statute relating to registration of motor vehicles, which includes only “residents of States or countries who have no regular place of abode or business in this Commonwealth for a period of more than thirty days in the calendar year.”</p> <p>A motor vehicle of such a corporation, while being operated upon a public way in this Commonwealth without having been registered here, is an outlaw.</p> <p>A corporation, which was incorporated in the State of Maine and had several ! places of business in this Commonwealth and a store in Nashua in the State of New Hampshire where a general meat packing business-and the business of storing furs and furniture were conducted, permitted the general manager of the Nashua store to use for his own business and pleasure around Nashua a motor vehicle owned by it and duly registered in New Hampshire but not in this - Commonwealth. Such general manager directed a subordinate in the corporation’s employ to transport from Nashua to a city in this Coipmonwealth, in such a motor vehicle registered in New Hampshire but not in this Commonwealth, a gas stove which the general manager had stored for .several months in the defendant’s storehouse and had sold to his cousin in Lawrence. While on a public way in this Commonwealth, the operator of the motor vehicle negligently injured another traveller. In an action against the corporation for the injuries received, it was held, that a finding was not warranted that the motor vehicle was being operated on business of the corporation; and also that a finding was not warranted that the Nashua general manager had authority to cause the defendant’s motor vehicle to be operated unlawfully upon a public way in this Commonwealth on his personal business.</p> <p>The consequence of one permitting a nuisance, such as an unregistered motor vehicle operated upon a highway, is that he is responsible for injuries caused thereby even although such vehicle is at the moment when such injuries are caused being used in the business or pleasure of another. Per Hogg, C. J.</p> <p>At the trial of the action above described, it appeared that the injury to the plaintiff ' occurred in June, 1918, and there was evidence tending to show that the motor vehicle was not registered in Massachusetts in the year 1917 and that during that year the general manager had used it five or six times to go from Nashua in New Hampshire to Lawrence in this Commonwealth to visit his family. There was no evidence- warranting a finding that such trips were under circumstances likely to come to the defendant’s attention, nor was there any evidence of any use of the motor vehicle in Massachusetts in 1918 previous to the injury to the plaintiff. Held, that a finding was not warranted that the defendant knew or ought to have known of the unlawful use of the motor vehicle in Massachusetts by its Nashua general manager for his own business or pleasure so that its acquiescence in such- use on the occasion when the plaintiff was injured might be implied.</p> <p>At the trial of the action above described, after both parties had rested and the judge had denied a motion by the defendant that a verdict be ordered in its favor and had refused to rule in substance that there was no evidence warranting a finding that the general manager had authority from the defendant to usfe the unregistered motor vehicle on his own business in Massachusetts, the defendant’s attorney, in objecting to the form of a special question which the judge was propounding to the jury, stated that the defendant contended that the real question was whether the general manager had authority, or whether it was within the scope of his employment, to permit the use of the automobile on his own business, and whether that permission amounted to the consent of the defendant, and further stated that he (the attorney) thought, that, if the manager had authority generally to use the automobile for his own business, it would follow that he would have authority to use it in Massachusetts as well as in Nashua for that purpose, and that he thought that was the real question ' at issue in the case and that whether or not the general manager had authority to permit the commission of an illegal act was not the issue from his point of view. The judge asked the defendant’s counsel, “You would like tó have added, ‘Authority to operate the automobile upon business of’” the general manager? and the defendant’s counsel replied, “Yes, and then whether it happened on the highways of Massachusetts or not I don’t care.” Held, that it could not Be said that the remarks of the defendant’s counsel, occurring after the denial of the defendant’s motion and the refusal of its requests for rulings, constituted a waiver of the requests.</p>

<p> Mechanic’s Lien. Joint Tenants and Tenants in Common. </p> <p>In a petition for the establishment of a mechanic’s lien under R. L. c. 197, the respondents were two sisters who owned the real estate as tenants in common and one to whom they had agreed in writing to sell it, the agreement providing that possession should be given to the prospective purchaser on delivery of the deed by the owners, the premises then to be in the same condition as when the agreement was signed, “ reasonable use and wear of the buildings thereon only excepted.” Previous to the making of the agreement the prospective purchaser made a contract with the petitioner for repairing the premises and was permitted by the owners to take possession of the premises so that the petitioner might do his work. Subsequently the purchaser did not carry out his agreement and the real estate never was conveyed to him. Held, that the foregoing facts alone did not warrant a finding that the agreement of the prospective purchaser with the petitioner was made by consent of the owners or of a person rightfully acting for them in procuring or furnishing such labor or materials.</p> <p>At the trial of issues framed upon the petition above described, there was further evidence warranting findings that one of the tenants in common, knowing that the prospective purchaser could not carry out his agreement to purchase the premises without procuring a loan secured by a mortgage thereon and that such loan would not be procured unless the premises were placed in proper repair, agreed orally with the prospective purchaser that the agreement for purchase should be so far modified as to permit the prospective purchaser to take imme-, diate possession of the premises for the purpose of having the repairs in question made and of procuring the mortgage loan and therewith paying the pinchase price named in the contract. Held, that the question, whether the tenant in common who agreed to such a modification of the contract consented to the making of the contract between the prospective purchaser and the petitioner, was for the jury.</p> <p>At the same trial, it appeared merely that the tenant in common who agreed with the prospective purchaser to the modification of the agreement had control and management of the real estate for herself and her cotenant, her sister, and that she had told her sister of the progress of the repairs on the premises. Held, that a finding was not warranted that the absent tenant in common had consented to the modification of the agreement between the petitioner and the prospective purchaser for the repairs on the premises.</p> <p>Where, in a petition for the establishment of a mechanic’s lien under R. L. c. 197 against two sisters who owned the real estate as tenants in common, it appeared that a contract for labor and materials was made with the petitioner by one who did so with the consent of one of the tenants in common, but there was no evidence warranting a finding that the contract was made with the con-. sent of the other tenant in common, it was held that the lien might be established as to the interest of the tenant in common who consented to the making of the contract with the petitioner, and must be dismissed as to the other tenant in common.</p>

<p>Will, Validity. Undue Influence. Evidence, Remoteness, Relevancy and materiality, Admissions, Competency, Of soundness of mind, Opinion: expert. Physicians and Surgeons. Witness, Expert.</p> <p>At the trial of an issue as to whether an entire instrument, alleged to be a will, " was procured to be executed by fraud or undue influence of five designated persons “or any of them,” among them a woman, who at the time of the decedent’s death had been living with him as his housekeeper and had been known generally as his wife, and to whom there was given a bequest not amounting to the entire property of the decedent, evidence as to early relations of the decedent and the woman, where the relations in question were alleged to have existed about twenty-five years before the death of the decedent and where the testimony was offered before the woman had testified, is not admissible to affect the credibility of the woman, because she had not yet testified, nor as an admission affecting the validity of the will, because no statement of a beneficiary under a part only of a will was admissible at the trial of the issue above described as an admission affecting the validity of the whole will.</p> <p>At the trial of the issue above described, the judge in bis discretion may exclude as too remote events in the life of a son of the woman, reputed to be the wife of the decedent, occurring twenty-four years before the death of the decedent, as well as occurrences at the decedent’s home six years before his death.</p> <p>In this Commonwealth, only the witnesses to a will, the testator’s family physician and experts of skill and experience in the knowledge and treatment of mental diseases are competent to give their opinions as to the testator’s mental condition.</p> <p>The mere fact that a witness is a surgeon or a physician does not of itself qualify him as an expert in mental diseases.</p> <p>A surgeon whose practice had been confined to surgery from the time of his graduation from a medical school and who, although he took such courses in mental diseases as were offered at the school in addition to practical work at the Boston Insane Hospital, clinics at Danvers Insane Hospital and clinics at the School , for Feeble-Minded at Waverley, had not attempted to treat any kind of mental diseases, was permitted by a judge presiding at the trial of an issue, whether a testator, who had died from the results' of having been shot and who within twelve hours after the shooting had made his will while on his deathbed, was of sound mind, to testify that in his opinion the testator had died of surgical shock, which causes anaemia, mental apathy, torpor and dulled senses. The judge excluded the opinion of the witness as to the testator’s soundness of mind from the time he was shot until the time of his death. Held, that it could not be said that there was reversible 'error in the exclusion of the opinion as to the testator’s soundness of mind.</p> <p>An attorney who drew a will and was present when it was executed, but who was not a subscribing witness, may be permitted to state that he did not hear the testator say or do anything which indicated that he was not of sound mind.</p> <p>After the woman, the reputed wife of the testator, at the trial above described had testified that the testator, both before and after she had procured a divorce from her husband, had promised to marry her, she was asked if the ground of her divorce was the desertion of her husband. The testimony was excluded. Held, that the exclusion was proper, as the testimony was irrelevant.</p> <p>TestMony at the same trial of the attorney who procured the divorce of the woman from her former husband, except wherein it tended to contradict testimony previously given by the woman, was held properly to have been excluded.</p> <p>At the trial of the issues above described, the judge instructed the jury that they were entitled to take into consideration the fact, if they found it to be a fact, that the wifi was unreasonable and unnatural, but that they should treat such evidence with care, and further instructed them as follows: “The law does not say that a man may not make an unjust or an unreasonable will. That is to say, it does not say that he may not make a will which appears to a jury to be unjust and unreasonable, because if he is of sound mind, has mind enough to make a will, follows the formalities and is not controlled and influenced by undue influence, it is his property, he can make such a will as he wants to and it is not for any jury to undertake under those circumstances to make his "will for him.” Held, that such instructions were proper.</p> <p>Further instructions of the judge at the same trial, to the effect that statements in the divorce libel of the reputed wife of the testator, which were contradictory to statements made by her on the stand, were not to be considered by the jury as evidence of their own truth or falsity, but were to be considered only as afi feeting the credibility of the witness, were held not to be erroneous.</p>

<p>Tort for personal injuries, alleged to have been received by one Michael Schena while a tenant on premises owned by the defendant. Writ in the Central District Court of Northern Essex dated December 1, 1914.</p> <p>After appeal to the Superior Court, upon suggestion of the plaintiff’s death,, Domenico A. Schena, the administrator of his estate, was admitted as a party plaintiff to prosecute the action in his stead.</p> <p>The action was tried in the Superior Court before Bell, J. The material evidence is described in the opinion. At the close of the evidence, the judge denied a motion by the defendant that a verdict be ordered in her favor. The jury found for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p>

<p>Tort, later by amendment, Tort or contract, for damages resulting from an alleged wrongful eviction of the plaintiff from premises owned by the defendant and alleged to have been rightfully in the possession of the plaintiff as lessee. Writ dated January 29, 1916.</p> <p>In the Superior Court, the case was tried before Jenney, J. The material evidence is described in the opinion. The judge denied a motion of the defendant that a verdict be ordered in her favor. The judge by agreement of the parties submitted the case to the jury with the understanding that, if the jury found for the plaintiff, the judge would set the verdict aside and report the case to this court and, if this court were of the opinion that there was evidence warranting a submission of the case to the jury, judgment should be entered for the plaintiff in the amount found by the jury; and that, otherwise, judgment should be entered for the defendant.</p> <p>The jury found for the plaintiff in the sum of $1,200. The judge, in accordance with the stipulation, set the verdict aside and reported the case for determination by this court.</p>

<p>Two actions of tort, each by a member of the crew of the ' fishing schooner Mary C. Santos registered in Provincetown, against the master and the owners of that vessel, for personal injuries respectively sustained by the plaintiffs in the afternoon of February 24, 1916, in Boston Harbor from an explosion of gasoline. Writs dated June 25, 1917.</p> <p>The answers of the defendants in each of the cases, in addition to a general denial, alleged that the plaintiff was not in the exerelse of due care but was guilty of negligence which contributed to his injury.</p> <p>In the Superior Court the cases were tried together before Cox, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendants in each of the cases filed a motion that a verdict be ordered for them. The judge granted the motions, and in each of the cases ordered a verdict for the defendants.. Thereupon he reported the cases for determination by this court, with the stipulation that, if the judge was right in ordering verdicts for the defendants, final judgment was to be entered for the defendants in each of the cases; otherwise, that the cases were to stand for trial.</p>

<p>Probate Court, Appeal. Words, “Aggrieved"</p> <p>On an appeal from a decree of a single justice of this court allowing a petition brought under R. L. c. 162, § 13, to enter and prosecute an appeal from a decree of the Probate Court allowing an alleged will, the record showed that the alleged testatrix left also an earlier will, dated ten years before the one allowed, and that the petitioners, who were named as legatees in the earlier will, had no knowledge of its existence until after the time for filing' an appeal from the decree allowing the later will had expired. The petition alleged unsoundness of mind and fraud and undue influence at the time of the alleged execution of the later will. The earlier will was filed for probate soon after it was found and a petition for its allowance was pending. It appeared at the hearing that one petitioner, who by the earlier will was given $15,000, certain specific articles of personal property and a woodlot, was given by the later will only a legacy of $10,000, and that the other petitioner was given $1,000 by the earlier will and by the later will was given nothing. The single justice in effect ruled that the petitioners were persons “ aggrieved ” within the meaning of R. L. c. 162, § 13. Held, that it must be assumed that in granting the petition to enter the appeal the single justice found that the failure to claim an appeal from the decree of the Probate Court was without default on the part of the petitioners and that justice required a revision of the case, and that the ruling, that the petitioners as matter of law were persons who might be found to have been aggrieved by the decree, was right.</p> <p>The granting by a single justice of the Supreme Judicial Court of a petition, brought under R. L. c. 162, § 13, to enter and prosecute an appeal from a decree of the Probate Court allowing an alleged will, necessarily imports that the single justice found that the petitioner’s failure to enter bis appeal was without default on his part and that justice requires a revision of the case.</p> <p>A person named as a legatee in an earlier will filed for probate is a person “aggrieved” by a decree allowing a later will which gives him less or nothing.</p> <p>In the case above described it appeared that an heir at law of the alleged testatrix had filed seasonably an appeal from the decree of the Probate Court allowing the alleged later will, and it was pointed out that the pendency of this appeal, which such heir at law had a right to waive at any time, did not protect the rights of the petitioners.</p>

<p>Two actions of tort against the W. T. Grant Company, a corporation conducting a retail store in Lynn. Writs dated February 3, 1916.</p> <p>Each declaration contained three counts, the first alleging assault, the second false imprisonment arid the third slander. In each of the cases the third count was as follows: “The plaintiff says that on or about the fourth day of December, 1915, the agents or servants of the defendant, thereunto duly authorized and in control of the defendant’s store situated on Union Street in said Lynn, publicly, falsely and maliciously charged the plaintiff with the crime of larceny by words spoken of the plaintiff substantially as follows: — 'You stole those beads; you took those beads from this store and you know it; you have taken things from this store;’ to the damage of the plaintiff in the sum stated in her writ herein.”</p> <p>In each case the answer was a general denial.</p> <p>In the Superior Court the cases were tried together before Shattuclc, J. The evidence under the third count is described in the opinion. At the close of the evidence the defendant filed a motion that a verdict be ordered in its favor on the third count, stating in support of its motion the following grounds:</p> <p>“1. There is no evidence from which the jury could properly find that the defendant authorized its employees to commit the acts complained of.</p> <p>“2. There is no evidence from which the jury could properly find that the defendant ratified the acts of its agents upon which this action is based.”</p> <p>The judge denied the motion. The defendant then asked the judge to instruct the jury, among other things, as follows:</p> <p>“3. The defendant is not liable under the count for slander unless the jury find either that the defendant authorized its servants to commit the acts complained of, or that it ratified said acts.”</p> <p>"8. If the jury find that the words set forth in the third count of the plaintiff’s declaration were published by the servants of the defendant, the defendant is not liable in the absence of evidence tending to show that said words were uttered by the authority of the defendant corporation or that said corporation had ratified such acts of its servants.</p> <p>"9. The mere fact that slanderous words were published by an agent or servant of the defendant in the course of his employment, and in reference to the plaintiff, is not sufficient to hold the defendant liable. Comerford v. West End Street Railway, 164 Mass. 13.”</p> <p>The judge refused to give any of these instructions, and as to the alleged slander gave to the jury the instruction which is quoted in the opinion.</p> <p>On the third count the jury returned a verdict for the plaintiff Mills in the sum of $400 and a verdict for the plaintiff Godfrey in the sum of $50. In each of the cases the defendant alleged' exceptions to the denial by the judge of its motion to order a verdict in its favor on the third count, to the refusal of the judge to give the instructions requested by it as stated above and to the instruction of the judge which is quoted in the opinion. After the death of Shattuck, J., the exceptions were allowed by Quinn, J.</p>

<p>Two actions of tort, one against the lessee and the other against the owner and lessor of a dwelling house and the surrounding land in the part of Boston called Forest Hills, for personal injuries sustained on January 25, 1917, caused by slipping and falling upon ice on the sidewalk of Wenham Street, a public highway, formed by water alleged to have come from conductors on the premises of the defendants. Writs dated respectively March 16 and March 31, 1917.</p> <p>In the Superior Court the cases were tried together before Raymond, J. The plaintiff contended that the ice was formed by water which came from the roof of the piazza through a conductor and .trough and flowed across the lawn to the sidewalk where it froze. The defendants contended that the condition of the sidewalk was due to natural causes for which they were not responsible. No question was raised as to the propriety of the notice given by the plaintiff to each of the defendants nor was any question intended to be raised as to the respective duties or liabilities of the landlord and the tenant. The material facts that could have been found in support of the plaintiff’s contention are stated in the opinion.</p> <p>At the close of all the evidence, the defendants filed a motion that a verdict be ordered for the defendants. The judge thereupon ordered a verdict for each of the defendants, basing his decision upon the fact that there was no evidence whatever of any artificial channel that came nearer than twelve feet to the street either way, and ruled that upon all the evidence the plaintiff had not made out a case. By agreement of the parties he reported the cases for determination by this court, with the stipulation that, if his ordering of the verdicts and his rulings were right, judgments ■ should be entered for the defendants upon the verdicts. If the cases should have been submitted to the jury, judgments were to be entered for the plaintiff in the sum of $400 and it was agreed as follows: “The question of the liability of one of the defendants, and the lack of liability of the other defendant, is not intended to be raised by this report. And, if the evidence shows that the cases should have been submitted to the jury as against either or .both of the defendants, then judgments are to be entered for the plaintiff in the sum of ,$400 against both defendants, the plaintiff being entitled to but one satisfaction of judgment in the two cases.”</p> <p>The ordinance of the city of Boston, contained in' the Revised Ordinances of 1914, c. 40, § 1,7, which was introduced in evidence by the plaintiff, subject to the exception of each of the defendants, was as follows: “No owner or occupant of a building or of land shall suffer sewage or waste or stagnant water to remain in such building or upon such land. No owner or occupant of land abutting on a private passageway and having the right to use such passageway shall suffer any filth, waste, or stagnant water to remain on that part of the passageway adjoining such land. No person shall discharge any waste water or water from a sink or water-closet, except through a drain into a sewer or cesspool or in accordance with a permit from the board of health.”</p>

Contract by the members of a partnership engaged in the business of stair builders, under the firm name of Manson and MacPhee, on a contract in writing to recover the sum of $120 as the contract price for certain stairs set into the defendant’s house by the plaintiffs under a contract with one Louis Fisher, who had agreed to build a four-family house for the defendant on Willow Street in Waltham. Writ dated March 17, 1916.

<p>Contract for instalments alleged to be due upon a promissory note of the defendant to Thomas Howard Company, described in the opinion, alleged to have been indorsed to Knauth, Nachod and ICulme, bankers, for value and before maturity, and by them indorsed to the plaintiff for the purposes of this action. Writ in the Municipal Court of the City of Boston dated January 24, 1914.</p> <p>Upon removal to the Superior Court, the action was tried before Fox, J. The general features of the “voting contest” referred to in the opinion were that purchasers of goods at the defendant’s store were given blank votes under certain rules and conditions, which they could use for themselves or transfer to others, and which were cast to be counted by judges appointed by the defendant. The person whose name received the highest number of votes was entitled to- receive a piano and others received other prizes. The merchandise used as prizes was purchased with the note which is the subject of this action.</p> <p>The testimony referred to in the opinion as in the deposition of Knauth, a member of the firm of bankers to whom the note was indorsed by the payee, was as follows: “The'original note was indorsed and delivered by Thomas Howard Company to Knauth, Nachod and Kuhne on the twenty-eighth day of May, 1913, and Knauth, Nachod and Kuhne paid therefor on the thirteenth day of June, 1913, to Thomas Howard Company the sum of ,$240.” It further appeared by this deposition that Knauth, Nachod and Kuhne had entered into an agreement with the Thomas Howard Company previous to this transaction to advance to the Thomas Howard Company sixty per cent of such installment notes as should be presented to them for that purpose, that under this agreement they had advanced the sum of $49,726 previous to the transfer to them of the note in suit, that at the time of such transfer there was unpaid on the entire amount of their advances the sum of $38,894, that after such transfer, and up to the time of the depositions, they advanced $8,135, and that at the time 'of the depositions there was due them from Thomas Howard Company about $2,250. Thomas Howard Company made to Knauth, Nachod and Kuhne at the time of the transfer of the note in suit a collateral stock note, so called, which made no mention of any voting contest.</p> <p>The deposition of Knust, referred to in the opinion, who was advance loan clerk in the employ of Knauth, Nachod and Kuhne, corroborated the testimony of Knauth and contained this language relative to the indorsement upon the note: “The original promissory note, . . . was indorsed and delivered by Thomas Howard Company to Knauth, Nachod and Kuhne on the twenty-eighth day of May, 1913, and Knauth, Nachod and Kuhne paid therefor the sum of $240 on the fifteenth day of June, 1913.”</p> <p>Other material evidence is described in the opinion.</p> <p>At the close of the evidence, the defendant requested the judge to instruct the jury as follows:</p> <p>“If the scheme was to set up a prize contest over the piano and the defendant was induced to give his note for $400, said note would be void as between Thomas J. Fournier and the Thomas Howard Company, yet if any subsequent party took said note by indorsement or assignment under such facts and circumstances as would put a prudent man of business on inquiry as to the inception of said note, such party would be chargeable with full notice of the scheme and would not be entitled to recover against the defendant in this action.”</p> <p>“In passing upon this question you are authorized to take into consideration all the facts and circumstances connected with the case, the fact that the ICnauth, Nachod and ICuhne name appears upon the face of the note and further that the note has been apparently detached from the contract entered into between Thomas Howard Co. and Thomas J. Fournier and whether this banking concern would be likely to advance any money on a note secured from the defendant without fully informing itself of the conditions and contract under which the note was secured and the fact that neither Howard nor one of the bankers nor the plaintiff himself comes here to testify.”</p> <p>The requests were refused and the judge instructed the jury in substance that it was for them to decide upon the evidence introduced whether the indorsement of the name of the payee upon the note in suit was genuine. He further instructed them that the prize contest did not constitute a lottery. The defendant excepted to the refusal of the requests for instructions and to the instruction above described.</p> <p>The jury found for the plaintiff in the sum of $270; and the defendant alleged exceptions.</p> <p>R. L. c. 214, § 7, is as follows: “Whoever, sets up or promotes a lottery for money, or by way of lottery disposes of any property of value, or under the pretext of a sale, gift or delivery of other property or of any right, privilege or thing whatever disposes of or offers or attempts to dispose of any property, with intent to make the disposal thereof dependent upon or connected with chance by lot, dice, numbers, game, hazard or other gambling device, whereby such chance or device is made an additional inducement to the disposal or sale of said property, and whoever aids either by printing or writing, or is in any way concerned, in the setting up, managing or drawing of such lottery, or in such disposal or offer or attempt to dispose of property by such chance or device, shall for each offence be punished by a fine of not more than two thousand dollars or by imprisonment for not more than one year.”</p>

<p>Attachment, Of real estate standing in name of another.</p> <p>If the holder of the title to certain real estate delivers a deed of it to one who does not record the deed, but who at once as part of the same transaction executes and delivers a deed of the premises to a third person, and it does not appear that the record title was .retained in the first holder for the purpose of securing the land from attachment or for the purpose of delaying, defeating or defrauding creditors, an attachment of the land thereafter made in an . action against the first grantee, as land of the first grantee standing in the name of the record holder of the title, is ineffectual, and a purchaser at an execution sale after a levy following a judgment in such action receives no title either under the provisions of R. L. c. 167, § 63, or of R. L. c. 178, § 1, because at the time of the attachment the land described was not “the land of [the] debtor.”</p>

<p>Contract for breach of an alleged agreement by the defendant to employ the plaintiff as a guard during the duration of the war. Writ dated April 6, 1918.</p> <p>The plaintiff was alleged in the writ to be of Vineyard Haven in the county of Dukes County, and the defendant to be a corporation having a usual place of business in Boston. The writ was returnable in the county bf Suffolk.</p> <p>The defendant filed a plea in abatement reading as follows:</p> <p>"And now comes the defendant in the above entitled action and says that the plaintiff at the time the suit was brought was residing in Vineyard Haven in the County of Dukes and Commonwealth of Massachusetts, and that the cause of action, if any, accrued in the State of Connecticut; that by General Order No. 18-A, signed by W. G. McAdoo, Director General of Railroads, it” is ordered that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose; and, therefore, the defendant ought not to be held to answer to the plaintiff’s writ.”</p> <p>Neither the date nor any other of the provisions of “General Order No. 18-A,” referred to in the plea, than that there stated, was stated in the record.</p> <p>In the Superior Court, the plea was heard by <7. F. Brown, J., who overruled it “on the ground that the federal government is without authority to regulate procedure in the courts of the various States,” and, being of the opinion that the ruling so affected the rights of the parties to the controversy that the matters involved therein ought, before further proceedings, to be determined by this court, reported the question for that purpose, it being stipulated that, if the ruling was right, the defendant should be ordered to answer over, and, if the plea in abatement should be found to be a good defence, that the action should be dismissed.</p>

<p>Contract-for $754.61, for services and expenses as an attorney at law. Writ in the Municipal Court of the City of Boston dated August 13, 1917.</p> <p>The defendant, by an amended answer, alleged that, at the time the services are alleged to have been rendered, the plaintiff “was not admitted to practice law in this Commonwealth in accordance with the provisions of the Revised Laws and statutes in amendment thereof.”</p> <p>On removal to the Superior Court, the action was tried before McLaughlin, J. The material evidence and the exceptions by the defendant are described in the opinion. The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract for $2,829.25, the amount of taxes alleged to have been illegally assessed upon property of the plaintiff and paid by it under protest. Writ dated November 10, 1915.</p> <p>The action was heard upon an agreed statement of facts by Morton, J., who, at the request of the parties and under St. 1917, c. 345, reported it withbut any decision to this court for determination.</p> <p>R. L. c. 12, § 5, cl. 3, (St. 1909, c. 490, Part I, § 5, cl. 3,) as amended by St. 1914, c. 518, § 1, 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 purposes 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; nor shall the personal property or real estate owned by such institutions or corporations and occupied by them or any department thereof wholly or partly as and for an insane asylum, insane hospital, institution for the insane or for the treatment of mental or nervous diseases, be exempt from taxation unless at least one fourth of all property so occupied wholly or partly, on the basis of valuation thereof, and one fourth of the income of all trust and other funds and property held for the benefit of such asylum, hospital or institution and not actually occupied by it for such purposes, be used and expended entirely for the treatment, board, lodging or other direct benefit of indigent insane persons, or indigent persons in need of treatment for mental diseases, as resident patients, without any charge therefor to such persons either directly or indirectly.”</p>

<p>Municipal Corporations, Officers and agents. Civil Service.' Actionable Tort. Lowell. Negligence, Of municipal officers. Damages, In tort. Evidence, Competency.</p> <p>The members of the municipal council of the city of Lowell, in removing an officer whom the charter of the city empowers them to remove under the laws regulating the civil service, perform an executive or administrative act which in this particular must be performed in a judicial manner.</p> <p>The cloak of office does not protect executive or administrative officers who interfere with rights of individuals in ways not authorized by law, but they are liable personally for such wrongful interference.</p> <p>A majority of the municipal council of'Lowell, in removing from office the city treasurer and tax collector, failed to notify him of their proposed action and to x furnish him with a copy of the reasons which they contended constituted just cause for removal. Held, that the members who constituted such majority acted without authority in law and without jurisdiction and were liable personally for damage caused to such officer by their wrongful acts.</p> <p>St. 1911, c. 645, § 40, relating to the removal by the municipal council of Lowell of certain city officers, does not delegate judicial power to the council.</p> <p>The city treasurer and tax collector of Lowell, after bis removal as above described, successfully prosecuted mandamus proceedings for reinstatement and the final order of the court therein awarded him costs. Thereafter he brought an action of "tort to enforce against the majority of the council their personal liability, in which it was held, that he was entitled to have considered as an element of his damages the amounts reasonably paid by him for counsel fees in procuring reinstatement to office. '</p> <p>At the trial of the action of tort above described, it appeared that, after the reinstatement of the plaintiff in office following the mandamus proceedings, the municipal council by vote required of him a bond with a surety company as a surety, conditioned upon the faithful performance of his office, and that the plaintiff was unable to secure such a bond owing to the incidents attendant upon the litigation, so that he was compelled to resign his office. His salary was paid in full to the time of his resignation. He was unable to obtain more lucrative employment elsewhere. Held,, that the plaintiff was entitled to have the jury consider as an element of his damages the loss he sustained by reason of his being thus compelled to resign and being unable to obtain more lucrative employment elsewhere.</p> <p>At the trial of the action above described, testimony of agents of various bonding' companies, tending to show that the refusal of the companies to furnish a bond-to the plaintiff was due to the incidents connected with the litigation attendant upon the plaintiff’s removal and reinstatement, was competent.</p> <p>At the trial of the action above described, the plaintiff" was entitled to have the jury consider as an element of his damage such mental suffering on his part as was a natural and proximate result of the wrongful acts of the defendants.</p> <p>Good faith and absence of malice in the perpetration of the wrong to the plaintiff were held to constitute no defence in the action above described.</p> <p>At the trial above described, it appeared that the defendants had contended that they were justified in removing the plaintiff from office because he had left large sums of the city’s money on deposit with a certain bank in preference to other banks and had failed to collect sums due to the city from that bank as interest on daily balances. It also appeared that actions at law had been brought against the plaintiff and the sureties on his official bond, after his removal from the office to which he later was reinstated, for failure to collect such interest. Subject to exceptions by the defendants, the plaintiff was allowed to testify that he had had a conversation with one of the defendants in which that defendant had stated that he would “get even” with the president of the bank in question because its president had refused to honor his note, and also to testify that he had been informed from various' sources that there was no ground for the action against him and the sureties on his bond. Held, that the testimony as to the conversation with one of the defendants was admissible as tending to show malice toward the plaintiff, (which-then was an issue, although it later was withdrawn as an issue by the plaintiff,) and that both that conversation and the other testimony of the plaintiff were admissible as tending to refute the defendants’ contention that the plaintiff’s mental suffering was caused, not by their wrongful action in removing him, but by the controversy as to the relations between the plaintiff and the bank in question.</p>

<p>Petition, filed on August 13, 1918, for a writ of certiorari quashing a judgment of the Municipal Court of the City of Boston, affirming, in proceedings brought by the petitioner under St. 1918, c. 247, § 3, the action of the board of trustees of the Boston State Hospital in removing the petitioner from the position of engineer.</p> <p>The petition was heard by Crosby, J., who ordered that the writ should issue as prayed for, and, at the request of the respondents, reported the case for determination by the full court.</p>

<p>Tax, Exemption. Corporation, Charitable. Charity. Statute, Construction. Constitutional Law, Equal protection of the law, Due process of law. Massachusetts General Hospital. McLean Hospital. Evidence, Of value, Admissions, Returns to State officers. Words, “Therefor,” “Indigent persons,” “Fair cash value.”</p> <p>In St. 1909, c. 490, Part I, § 5, cl. 3, as amended by St. 1914, c. 518, § 1, providing that there should not be included among the charitable institutions exempted from taxation corporations whose property is used for an insane asylum, insane , hospital or for the treatment of mental or nervous diseases unless at least one fourth of all property so occupied on the basis of valuation thereof, and one fourth of the income of all trust and other funds and property held for the benefit of such institution and not actually occupied by it for such purposes I “be used and expended entirely for the treatment, board, lodging or other direct benefit of indigent insane persons, or indigent persons in need of treatment for mental diseases, "as resident patients,' without any charge therefor to such persons either directly or indirectly,” the word “therefor” refers to the words-“treatment, board, lodging or other direct benefit.”'</p> <p>The word, “therefor,” according to the approved usages of language, ordinarily refers to the last- and not to a more remote antecedent noun or phrase.</p> <p>It here was said, that in a broad sense the words “indigent persons,” as used in the amendment above described, include those insane persons and persons in néed of treatment for mental diseases who by reason of poverty are unable, having due regard to other imperative obligations resting upon them, to contribute any substantial amount to their support at the institution.</p> <p>The provision of the amendment above described, that, in order that the institutions referred to therein should be exempted from taxation, one fourth of the property occupied wholly or partly for the designated use, on the basis of valuation, and one fourth of the income from property held for its benefit must be devoted without charge to the direct benefit of indigent insane persons or of indigent persons in need of treatment for mental diseases, does not require of necessity a physical line of demarcation between the portion of real estate devoted to ' paying patients and those given over to the use of free patients, nor does it refer to a fractional use of the property based on numbers of patients; but it signifies that, in order,that such an institution should enjoy exemption from taxation, on a fair basis of computation, having reference both to numbers of patients treated so far as concerns enjoyment of property adapted for and applied to a use in common by paying and free patients and to definite property so far as there is a strict separation between paying and free patients, one fourth of its property in value must be used for the benefit of the latter, and, computing by the same method so far as practicable, one fourth of the income described must be used likewise.</p> <p>The statute above described as amended is not an unworkable piece of legislation.</p> <p>General law declaratory of a scheme of public policy as to exemption from taxation may be changed by the General Court provided no constitutional guaranty is violated.</p> <p>In the absence of some binding contract, no one has a legal right to the continuance of existing laws as to taxation.</p> <p>The statute above described as amended does not deny to the Massachusetts General Hospital, owning property in the town of Belmont which is called the McLean Hospital and which is taxable under the provisions .of the statute, the equal protection of the laws guaranteed both by the State and the federal Constitutions.</p> <p>The classification in the statute above described as amended, which selects from the literary, benevolent, charitable and scientific institutions and temperance societies that before the amendment were entitled to be exempt from taxation certain insane asylums, insane hospitals, institutions “for the insane or for the treatment of mental or nervous diseases” which devote only a portion of their property and income to “indigent persons” who are patients, as described, and deprives them of the exemptions, on its face is not irrational.</p> <p>The mere fact that only two institutions in the Commonwealth are included within the classifications above described, although it is a factor not to be lightly disregarded, is not conclusive against the validity of the statute, where it appears that the classification is rational.</p> <p>The classification above described does not effect a clearly hostile discrimination against a particular corporation or person or class outside the limits of general usage, but is within a custom respecting classification touching the general subject winch long has obtained in this' Commonwealth.</p> <p>The enforcement of the statute above described as amended, by the collection by the town of Belmont of a tax upon property of the Massachusetts General Hospital in Belmont known as the McLean Hospital, does not deprive the corporation of its property without due process of law.</p> <p>Nor does the removal of the exemption from taxation, effected by the amendment above described, deprive such corporation of its “ property, immunities, or privileges” contrary to art. 12 of the Declaration of Rights.</p> <p>The tax as assessed upon the corporation as above described is not a violation of the requirement of c. 1, § 1, art. 4, of the Constitution of the Commonwealth that taxes be “proportional and reasonable.”</p> <p>The “fair cash value” of land for the purposes of taxation is ascertained by a consideration'of all those elements which make it attractive for valuable use to one under no compulsion to purchase but yet willing to buy for a fair price, attributing to each element of value the amount which it adds to the price likely to be offered by such a buyer.</p> <p>At a hearing of a petition under St. 1909, c. 490, Part I, § 77, appealing from a refusal of the assessors of the town of Belmont to abate a tax assessed under the provisions of the amendment contained in St. 1914, c. 518, § 1, above described, upon the land and buildings which for many years had been used for the McLean Hospital, the petitioner requested many rulings which correctly stated various principles which must be observed in ascertaining the fair cash value of the property for the purposes of taxation, and the judge granted the requests with the qualification that the phrase "fair cash value,” as applied to the petition under consideration, could not be expressed in a single sentence. . The petitioner excepted. Held, that no error was shown.</p> <p>At the same hearing the petitioner asked for and the judge refused a ruling that “The ‘fair cash value’ of the real estate in question consists of the value of the property in the market apart from its special adaptability for hospital purposes, plus such sum as a purchaser might add to that value because of the chance that the property might at some time be sought for use as a hospital.” ' Held, that the refusal of the ruling could not be pronounced erroneous, the ruling being inapplicable to property already devoted to the uses of an insane asylum, which therefore might be thought its primary and most valuable use. Sargent v. Merrimac, 196 Mass. 171, 174, distinguished.</p> <p>For the reason above stated, it likewise was held not to have been erroneous for the judge to have refused to rule, “The ‘fair cash value’ of the real estate in question is no greater than it would be if such real estate were owned by a persim to whom the buildings and improvements were of no use.”</p> <p>And for the same reason it was held, not to have been erroneous for the judge to refuse to rule “The ‘fair cash value’ of the real estate in question is the value which the petitioner could have obtained for it at the date as of which the assessment is made, if it had then desired to sell said real estate, after fair and reasonable efforts had been made to find a purchaser who would give the highest price for it.”</p> <p>The judge also, at the hearing above described, being asked to give as a riding, “The ‘fair cash value’ of the real estate in question is the value which it would have had on April 1 [of the year in question] in the hands of any owner,” gave the ruling with a modification which added the words, “including the present owner.” Held, that the modification of the ruling was not erroneous.</p> <p>At the hearing" above described, the petitioner asked for a ruling, “ The value of the real estate in question to the petitioner over and above its value to any other owner is not to be included in fixing the 'fair cash value,’ ” and also for a ruling, “The ‘fair cash value’ of the estate for the purposes of taxation cannot exceed the sum which the owner after reasonable effort could, at the date as of which the assessment is made, obtain for it in cash.” The judge refused to make these rulings and filed a "memorandum” which tended to show that, although he accepted many correctly stated rulings of law in computing the “fair cash value” of the property in question, he still might have increased the full amount which could have been secured for the property in the market by substantial elements of its value to the petitioner alone. The petitioner excepted. Held, that the exception must be sustained and the case remanded to the Superior Court for further hearing.</p> <p>Returns made by the petitioner under St. 1909, c. 490, Part I, § 41, showing a valuation upon its real estate, introduced in evidence at the hearing above described, were held not to have been inadmissible.</p> <p>The petitioner in the petition above described was the Massachusetts General Hospital, having a usual place of business in Boston, but owning the property in question in Belmont. Its return to the assessors was sworn to before a notary public and not before one of the assessors of Belmont. Held, that the return was properly sworn to under St. 1909, c. 490, Part I, § 43, as it could not be said that the petitioner was not a person absent from Belmont.</p>

<p>Trustee Process, Eights of claimant.</p> <p>After a warehouse corporation, which was an alleged trustee in an action of contract against a non-resident defendant upon whom no service was made, had answered, denying that it had goods, effects or credits of the defendant in its hands or possession at the time of service of the writ upon it, interrogatories were propounded to it by the plaintiff, in answers to which it disclosed that, a few hours before the service of the writ upon it, goods of the defendant were transferred by it upon the defendant’s order to a certain bank. Three months later the bank filed a petition to be admitted as a party claimant which was allowed on the same day, and also on the same day filed a motion that the trustee be discharged. The motion was heard upon the pleadings, the interrogatories and the answers thereto and, nineteen days after it was filed, was allowed and the trustee was discharged. The plaintiff alleged exceptions and appealed. Held, that the claimant rightly was permitted to move that the trustee be discharged.</p> <p>It appeared that the answers of the alleged trustee, above described, were based somewhat upon hearsay and upon information and belief. The plaintiff did not seek to introduce further evidence. Held, that, although facts stated in answers to the interrogatories upon information and belief did not bind the plaintiff nor preclude him from showing their falsity, such answers were entitled to consideration and that, in the absence of any evidence to contradict them, the trustee properly was discharged.</p>

Bill in equity, filed in the Superior Court on August 23, 1918, to enforce a separation agreement between the plaintiff, the defendant George M. Proctor, her husband, and the defendant Willard P. Lombard, who acted as trustee in the agreement; and to. reach and apply to the payment of $1,080, alleged to be due to the plaintiff under the agreement, shares of stock in the defendant Hudford Truck Company, alleged to be owned by the defendant Proctor.

<p>Landlord and Tenant, Construction of lease. Contract, Construction, Validity. Equity Jurisdiction, To avoid unconscionable contract.</p> <p>A lease for a term of thirty-two years of four parcels of land in a city, denominated in the lease by reference to a sketch plan as lots A, B, C and D, provided for a fixed rent for parcels A and B, and that the rent to be paid for lots C and D should be nine per cent of the valuation of those lots as assessed by the proper authorities of the city “or those having the power in the premises to value said land for the purpose of taxation.” Lots A and B, which comprised about one third of the area of the four lots, were contiguous to a principal street of the city, and, dissociated from the other lots, had a value of about $30 per square foot. The other two lots, away from the street, had a value, if dissociated from lots A and B, of $5 per square foot. In the negotiations leading up to the lease, all parties knew that there was a great difference in value between the two groups of lots. The assessors of the city before the making of the lease had assessed the four lots together as a part of a larger parcel at $12 per square foot, which, as a uniform rate for all four parcels, was a reasonable assessment. The lessee sought to have the assessors assess lots C and D separately. The lessor objected to this being done, and the assessors refused to do it in the face of the objection. The lessor claimed as rent of lots C and D nine per cent of the valuation at $12 per square foot. The lessee, asserting that such a rent was unconscionable and was not intended by the parties, brought a bill in equity seeking to enjoin the lessor from interfering with the assessors’ assessing the lots C and D separately, to have the court determine, “by special assessment or otherwise,” the fair assessable value of lots C and D, and to have an accounting as to rents paid and to be paid. Held, that the bill must be dismissed as the plaintiff executed the contract voluntarily and deliberately with knowledge of the facts and without any misrepresentation or fraud on the part of the lessor and therefore was bound by its plain provisions.</p>

<p>Equity Jurisdiction, Specific performance. Mortgage, Foreclosure. Soldiers’ and Saidors’ Civil Relief Act. Equity Pleading and Practice; Reservation.</p> <p>A title to real estate, not a good title of record, may be shown by oral or other evidence outside the record to be marketable beyond any reasonable doubt, so that specific performance of a contract for conveyance of the real estate which does not expressly require a conveyance of a good title of record will be enforced in equity.</p> <p>While the only way in which a mortgagee under a Massachusetts statutory power of sale mortgage of real estate, in purchasing the property at a sale in foreclosure of his mortgage, can get a clear record title while U. S. St. 1918, c. 20, § 302, known as the Soldiers’ and Sailors’ Civil Relief Act, is in force is, as decided in Hoffman v. Charlestown Five Cents Savings Bank, 231 Mass. 324, to foreclose the mortgage under an order of a court of equity as therein described, nevertheless it is not impossible that, if such a mortgagee, after purchasing the real estate at a foreclosure sale without such an order of a court, made a contract in writing to convey the real estate, he may be able to maintain a suit in equity for the specific performance of such contract by proving beyond a reasonable doubt that no person in the military service of the United States had any interest, legal or equitable, in the premises in question.</p> <p>Where, in such a suit, the plaintiff alleged that no person in the military service of . the United States had any interest in the premises, and there were included as defendants, besides those who had agreed to purchase the real estate, all persons whose names appeared of record as having any interest in the premises since August, 1915, and all the defendants except one, against whom the bill was taken pro confessa, admitted the allegations of the bill, upon the suit being re-, served for determination of this court upon the bill and answers, it was held, that, no evidence having been presented, the suit must stand for a hearing of the question of fact, whether any person in the military service of the United States had any interest in the premises in question.</p>

<p>Tort for personal injuries alleged to have been suffered by the plaintiff when passing to a water closet through a cellar, used in common by the tenants of a building, owned by one George B. Milton, originally the defendant in the action. Writ dated January 5, 1917.</p> <p>In the Superior Court the action was tried before Fessenden, J. The evidence and certain exceptions to testimony of the defendant’s son are described in the opinion. At the close of the evidence, the defendant asked for rulings, in substance that the plaintiff was not entitled to recover and that the defendant was entitled to a verdict. The rulings were refused. The jury found for the plaintiff in the sum of $1,500.</p> <p>Subsequently to the verdict the defendant died, and the executors of his will were admitted to defend the action in bis stead. They alleged exceptions.</p>

<p>Negligence, Street railway, Causing death.</p> <p>At the trial of an action by an administrator against a street railway company for causing the death of the plaintiff’s intestate, the evidence in its aspect most favorable to the plaintiff tended to show that on a clear evening in November the intestate started to cross a well lighted street in a city, not at a stopping place for cars nor at a cross walk, when an electric car of the defendant, properly lighted and proceeding at a rate of about ten miles an hour, was fifty to seventy-five feet away; that the motorman sounded his gong and caused the car to slacken its speed to four or five miles an hour; that the intestate paid no attention to the car and, without walking in front of it, came into collision with its forward corner, and that the car stopped within four or five feet of the point of collison. Held, that there was no evidence warranting a verdict for the plaintiff.</p>

<p>Landlord and Tenant, Repairs, Landlord’s liability to member of tenant’s family. Evidence, Admissions, Competency. Custom.</p> <p>If the second floor of a three-tenement house containing a separate tenement on each floor is let to a tenant, a railing of a platform and a comer post supporting the platform, forming a part of the tenement and within the horizontal planes bounding, the second floor, are a part of the demised premises, which, unless otherwise provided by express agreement, the landlord is under no duty to keep in repair.</p> <p>The mere fact that the supporting post, above described, constituted a part of the exterior construction and framework of the building essential for the other tenements as well as for the second floor tenement, does not bring it within the rule requiring the landlord to keep in repair portions of the building such as stairways and passageways, which are used in common by the occupants of the building and control of which is retained by the landlord.</p> <p>The mere facts, that the landlord at the request of the tenant made'repairs upon the demised premises, above described, from time to time, and that, about one month previous to an injury received by the wife of the tenant of the second floor and due to the giving way of the railing above described, a sagging condition of the platform had been called to the attention of the landlord, who had employed a carpenter to look the platform over but who had not made any repairs,' does not constitute an admission of responsibility on the part of the landlord for the injury to the tenant’s wife.</p> <p>In an action against the landlord by the wife of the tenant of the second floor for the injury received as above described, it was said that, if it was assumed that the defendant had agreed to make outside repairs upon the building, the ordinary implication was that he was to do so only upon reasonable notice, and that there was no evidence of notice as to a defect in the railing, the breaking of which caused the injury.</p> <p>At the trial of an action by a member of the family of a tenant of one floor of a three-tenement building against the landlord for personal injuries resulting from the breaking of a railing which was a part of the demised premises, where it appears that the tenancy was not under a lease in writing and that there was no express warranty by the landlord that the premises were 'reasonably fit for use nor any express agreement that he would keep them in a safe condition nor in the condition in which they were at the beginning of the tenancy, a custom is not admissible in evidence to the effect that, in the city where the accident occurred, in the letting of tenements without a lease in writing, when nothing was said between the owner and the prospective tenant as to repairs, the owner should make necessary repairs and keep the property tenantable and in safe condition, such custom being invalid because contrary to the general rules of law.</p> <p>Customs, which are in conflict either with express or with implied terms of a contract or undertake to avoid the effect of settled rules of law or to make for a definite class of cases or persons a law singular to such class, are invalid.</p> <p>Collection and discussion by Rugg, C. J., of decisions relating to the effect upon contracts and commercial transactions of customs and usages.</p>

<p>Tort for personal injuries caused by a fall on a stairway of the defendant’s station at Beach Street in Boston. Writ dated November 14,- 1916.</p> <p>In the Superior Court the ease was tried before Hall, J. The material evidence is described in the opinion. The defendant made no requests for rulings. The last two paragraphs of the charge of the judge were as follows:</p> <p>“When you gentlemen go out into the jury room, start this case and work it out, not on the lines of my charge especially — I am only giving you the law with perhaps some suggestions that I hope are practical — but start with that open-mindedness that both these lawyers and their clients are entitled to, and see if you can figure this thing out, based on the proposition I have given you and where you say the burden of proof is. So long as the burden is sustained by the plaintiff, even to the end, she is entitled to have you follow. Wherever that burden falls, there you have got to stop. You. will go out in your jury room and you will talk this over and look at it, and try to get it right, under your oath, for both these people, both the company and Mrs. Cronin, to the end that you may do justice. Decide it on the evidence. Don’t decide it upon collaterals — that you know somebody else that got hit on the head and had a cancer. That is not evidence. It is the purest hearsay from one man in the jury room to his brothers; it doesn’t amount to anything. You have got a right to take the experience you have acquired in this world with respect to disease, however. You have a right to use that in forming your judgment. As I'told you before, you have a right to say what are the probable uses of the elevated railroad. That is why you are here, because they are appealing to your judgment. They want your judgment on the evidence, though. This is an important case for both these parties. It has been well tried, I think I may perhaps say fairly tried, and all the counsel can ask on behalf of their clients is that you give them an honest decision of this case, based on the law and the evidence, wherever it leads you.</p> <p>“As you make up your mind, you will honestly, as under your oath of office you must, as a proposition that conclusively follows, return a verdict for the party that you say is entitled to it.”</p> <p>Other material portions of the charge are described in the opinion.</p> <p>The jury found for the plaintiff in the sum of $5,000; and the defendant alleged exceptions “to so much of the charge as said that the jury should try to pick out one witness, because it seems to. neglect the question of weight of the evidence. ‘1 would single out one.’ That is both on the question of liability and damages.”</p> <p>The case was submitted on briefs at the sitting of the court in January, 1919, and afterwards was submitted on briefs to all the Justices.</p>

<p>Contract, Construction, Performance and breach. Agency. Waiver.</p> <p>At the trial of an action of contract for commissions alleged to be due to the plaintiff for procuring sales of sole leather by the defendant to a certain firm, it appeared that, while the rate of commission was agreed upon, there was no express agreement as to a definite time during which the plaintiff should receive a commission for such sales and there was no evidence from which such an agreement could be implied. Held, that the defendant could terminate the contract upon reasonable notice to the plaintiff.</p> <p>At the trial above described, there was evidence that the defendant wrote a letter to the plaintiff on April 13 of a certain year stating that thereafter he would pay the plaintiff no commission on sales to the firm in question; that shortly thereafter the plaintiff talked on the subject with the defendant and told him that he would expect his commission, and the defendant said, “You will get it and anything that is coming to you;” that the next month he received a letter from the defendant enclosing a check for commissions through the month of April; that, at the end of January of the following year, he received a further payment of commissions from the defendant; that he had received nothing between that time and the time of the bringing of the action, two years and two months later, and, when he spoke to the defendant about it, the defendant said that he "would get anything that was coming to him.” Held, that, whether the defendant had waived his right to terminate the contract depended upon what was the intent of the parties and was a question of fact for the jury, who were warranted in finding that there had been such a waiver.</p>

Tort for injury to the plaintiff’s horse and milk wagon and the contents of the wagon, alleged to have been caused by a collision with a street car of the defendant resulting from negligence of the motorman of the car. Writ dated September 8, 1913. Action as to certain motions of the plaintiff relating to interrogatories of the plaintiff and answers thereto, from, which the plaintiff appealed, is described in the opinion.

<p>Bill in equity, filed in the Superior Court on October 29, 1918, by the New York Central Railroad Company, lessee of the Boston and Albany Railroad, and W. G. McAdoo, the then Director General of Railroads, seeking specific performance of the provisions of a lease for five years made by the owners of a seven-story building numbered 57 Kneeland Street, in Boston, which the defendants, then mortgagees of the premises, assented to and agreed to be bound by in case they foreclosed their mortgage before termination of the lease. ■ The prayers of the bill were in , substance that the defendants be required to furnish the plaintiff heat on Sundays and holidays and between the hours of six o’clock in the afternoon and seven o’clock in the morning.</p> <p>The suit was heard by J. F. Brown, J. He found that the “rest of the building on Kneeland Street is occupied by stores and manufacturing establishments. It appeared that the custom in Boston is to heat office buildings from eight o’clock A.M. to six o’clock P.M., and manufacturing establishments from seven o’clock A.'M. to six o’clock P. M., unless the lease calls for heat beyond those hours, but that it is customary to insert in such leases a clause that ‘during reasonable and customary business hours the lessors are to furnish to the lessee steam for heating the premises in the heating season,’ or similar clauses.” The judge made certain other findings of fact which are described in the opinion, ruled ■ that the suit could not be maintained, and at the request of the plaintiffs reported the case to this court for determination.</p> <p>The case was argued at the bar in March, 1919, before Rugg, C. J., De Courcy, Crosby, Pierce, & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>Mechanic’s Lien. ■ Contract, Building contract.</p> <p>An instrument in -writing signed by a building contractor and the owner of certain real estate, stating merely, “I herewith agree to furnish all necessary material for building on” a certain street in a city for the owner, naming him, “as follows,” followed by a statement of the cost per hour of carpenters and laborers to be employed and by provisions as to prices to be paid for materials and as to payments by the owner, does not fulfil the requirement of Sts. 1915, c. 292; 1916, c. 306, as to a mechanic’s lien, that, in order for a contractor to establish his lien, he must show that he made a written contract with the owner.</p>

<p>Compromise of Controversy concerning Will. Will. Assignment. Equity Pleading and Practice,'Decree. Estoppel. Contract, Repudiation. Equity Jurisdiction, To enforce assignment of part of claim for payment of debt.</p> <p>Where, by the provisions of a certain will, the interest of the son of the testator in a trust was inalienable and non-assignable and an agreement for a compromise of a controversy concerning the will, which struck out such provision and inserted a clause providing for a trust which gave the son an interest which was assignable, was assented to by all parties in interest and by a guardian ad litem representing the interests of certain minors, and, upon a suit in equity in the-Supreme Judicial Court under R. L. c. 148, §§ 15-18, by those named as executors in the will for confirmation of the agreement, all persons interested were parties and it was adjudged and decreed that the compromise was “just and reasonable” and a decree ratifying and confirming it was entered from which no appeal was taken and which never was reversed, such decree, whether erroneous or not, cannot be attacked in a suit by a trustee, to whom the son assigned his interest under the trust, to enforce the assignment/ but stands as the law of that case, in which the rights of the parties are to be determined upon the footing of the provisions of the will as changed by the agreement of compromise and not upon a construction of the will as it appeared when offered for proof.</p> <p>An assignment, by a beneficiary of a trust under a will, of an assignable vested expectant interest in the income of the trust, made in good faith for a valuable consideration to a trustee for certain of his creditors to be used for the payment of their claims, whether it be treated as a partial or a full assignment of income, cannot successfully be attacked by the assignor himself or by a trustee in bankruptcy of his estate appointed in proceedings begun more than four months after the assignment was effected.</p> <p>Where a beneficiary under the provisions of a trust is entitled to a certain fractional portion of the income of the trust semiannually, such right is a present, equitable right of ownership which ripens into an ordinary property right when the income accumulated in the hands of the trustee becomes payable, and an assignee from the beneficiary of his interest in the trust succeeds to such right and may enforce it in equity.</p>

<p>Board, of Health, Municipal. Garbage. Municipal Corporations.</p> <p>It is within the limits of the police power for a municipality, acting for the common good of all, either to take over itself or to confine to a single person or corporation the collection, transportation through its streets and final disposition of garbage, which is an actual and potential source of disease and a detriment to the public health and may easily become a public nuisance.</p> <p>An ordinance of the city of Boston, providing that “No person, other than employees of the city,|. . . shall in any street carry . . . house offal or other refuse matter . . .' except in accordance with a permit from the commissioner of public works approved by the board of health,” and a regulation by the board of health, adopted as a health measure because of difficulty experienced in placing responsibility for nuisances created by failure of some persons theretofore holding permits to collect garbage regularly and in a sanitary manner, but who were irregular, slovenly and offensive in their methods, which regulation prohibited the transporting of garbage through the public ways of the city except by the city or its contractors and their agents, are justifiable as reasonable exercises of the police power.</p> <p>Accordingly, where the city officials, acting in good faith, have issued a permit to collect and dispose of the city’s garbage to a corporation which acts under a contract with the city and for its own profit, a petition for a writ of mandamus cannot be maintained to compel them also to issue to a farmer in a nearby territory a permit to collect garbage at certain hotels and restaurants and to transport it to his farm, although the petitioner has had such a permit from the city for years, has done the work in a careful and entirely satisfactory manner and without offence to the senses or harm to the health of the community, and suffers a pecuniary loss by being deprived of the privilege of continuing to do so.</p>

<p>Damages, Loss of prospective profits. Contract, Performance and breach, Construction. Evidence, Competency. Theatre, For display of moving pictures.</p> <p>At the trial of an action for the breach of contracts by a corporation, which was a distributor of moving picture films, to furnish to and to license the plaintiff to exhibit at his theatre in Lowell a certain number of films, each for three successive days, which portrayed certain well known and popular artists, the defendant contended that the contracts never were executed, but the jury found,, dn evidence warranting the finding, that the contracts were made as alleged. There was no performance by the defendant, and it contended that there was no evidence competent to show that the plaintiff had suffered any damage. The plaintiff introduced evidence tending to show what were his gross receipts week by week and what were his actual expenses during the period when,' if the contracts had been performed, he would have been exhibiting the defendant’s films; what his expenses would have been with the defendant’s films during that period; what his gross receipts were week by week during the preceding year, when he showed films inferior to the defendant’s; that, during the period in question, another theatre than his in Lowell, subject to the same conditions as to competition but at an inferior location and with a larger seating capacity, which was exhibiting the defendant’s films, had crowded houses and turned patrons away; that the patronage of such theatres depended upon the particular artists who were being portrayed, and that the contracts in question called for films portraying first class artists in pictures never before exhibited in Lowell. Held, that the evidence was competent to give the jury a satisfactory basis on which to find substantial damages.</p> <p>The contracts above described each contained a clause providing that either party to them, by a notice given within ten days after the exhibition of any picture, might limit the contract to one additional picture upon the delivery of which the contract should terminate. The defendant contended that the damages ■ should be limited to the loss caused by the plaintiff being deprived of one picture under each contract. There was no evidence that the defendant gave any such notice as the contract called for. The judge instructed the jury that, in determining the extent of the plaintiff’s damages, this possibility of termination of the contracts should be considered. Held, that the provision in the contract did not mean that the defendant might elect either to repudiate the contracts in the beginning or to terminate them by notice and that in either event damages should be limited to such as were caused by the loss of one picture under each contract; and that the instruction given by the judge was sufficiently favorable to the defendant.</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, in part affirming and adopting and in part revising the decision of a single member of. that board, awarding compensation to Gertrude Freeman, mother of Clarence • E. Freeman, a deceased employee, under Part II, § 6, of the act, as one partially dependent upon the employee at the time of his injuries.</p> <p>The material portion of Part II, § 6, is as follows:</p> <p>“. . .If the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the I association shall pay such dependents a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury.”</p> <p>Findings of the single member of the Industrial Accident Board, material to this decision, were as follows:</p> <p>“The claimant was a dependent within the meaning of Part V, § 2‘ and partially dependent upon her son, the decedent, at the time of his injury and death, under Part II, § 6 of the act.</p> <p>“The claimant received a total sum of $350 from her son for her support during the year preceding the date of the injury. Previous to leaving home, shortly before the occurrence of the fatal injury, the employee had talked with his mother relative to sending her money for her support. He promised, when he went to work, that he would send her all his earnings except his board and money for' his clothes. On the day previous to the fatality, he accepted employment from the subscriber at an average weekly wage of $12 and advised Mrs. Annie L. Billings and Merle Billings that it was his intention to pay his board, $5, out of his earnings and send the balance home.’. . .</p> <p>" (b) As to the basis upon which dependency shall be computed, the board member is of opinion that the insurer is obligated to pay the claimant ‘ a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed (during the year preceding the date of his injury and death, $350) . . . bears to the annual earnings of the deceased at the time of his injury.’ The ‘annual earnings of the deceased at che time of his injury’ are $624; that is fifty-two times his average weekly wages of $12. The amount which would have been due the claimant, had she been wholly dependent, would be $8 a week for a period of five hundred weeks. Since she is partially dependent, the amount due her is 350/624 of $8 or $4.49 per week, for a period of five hundred weeks, subject to the provisions of the act.”</p> <p>Appended to the report of the single member of the board was a report of all the material evidence. The insurer asked the single member to nlake two rulings as follows:</p> <p>“1. The employee left no dependents wholly or partially dependent upon his earnings for support at the time of his injury.</p> <p>“2. There was no dependency in part at the time of the injury.”</p> <p>These requests were refused.</p> <p>The full board affirmed -and adopted the findings and rulings of the single member, except that they revised the decision in the paragraph above quoted and designated “b,” finding and ruling instead as follows:</p> <p>“ The ‘ annual earnings ’ of the decedent at the time of his injury were the sums earned by him during the year immediately preceding the date thereof, which are shown by the record to be as follows: During the fall of 1917, $150; during the winter of 1917-18, six weeks, $108; during the summer of 1918, $250; and one day’s . employment, for subscribers, $2; total, $510.</p> <p>“The employee’s contributions to the support of his mother during the year prior to the date of his injury and death were $350. Therefore, the insurer is obligated to pay the claimant 'a weekly compensation equal to the same proportion of' the 'weekly payments for the benefit of persons wholly dependent as the amount contributed [$350] . . . bears to the annual earnings [$510] of the deceased at the time of his injury.’ The employee’s average weekly wages at the time of his injury and death were $12; the amount due a person wholly dependent under Part II, Section 6, would be $8; therefore, the amount due the claimant, who is partially dependent, is 350/510 of $8, or $5.49 per week, for a period of five hundred weeks, subject to the provisions of the act.”</p> <p>The findings and decree of the board were confirmed by the Superior Court, and the insurer appealed.</p>

<p>Tout for causing the death of the plaintiff’s intestate, Joseph E. Bergeron. Writ dated October 6, 1917.</p> <p>In the Superior Court the action was tried before Fox, J. The material evidence is described in the opinion. At the close of the evidence the defendant moved that a verdict be ordered fa-r him. The motion was denied. He then asked for rulings, the following of which were refused: •</p> <p>“1. On all the evidence, the plaintiff is not entitled to recover against the defendant in this action.”</p> <p>“4. If the jury find that the plaintiff’s intestate was asked by a servant of Newell to aid in moving the car, and was killed by helping to move the car in response solely to that invitation, the plaintiff cannot recover against this defendant.”</p> <p>“6. One volunteering to help in the work of some one other than his employer, in which work he himself or his employer has no personal interest, has no greater rights in the matter of recovery for injury, than an employee of the person to help in whose work he volunteered.</p> <p>“7. The plaintiff’s intestate cannot in any event recover except under circmpstances where an employee of the defendant might recover.”</p> <p>"9. The defendant owes the plaintiff’s intestate no greater duty than he owed his employee — Lee.</p> <p>“ 10. One who without protecting or promoting any interest of his own assists in the service of another cannot recover for injury while so acting, nor can there be recovery for his death while so acting, unless the injury or death was the result of wanton or wilful misconduct.</p> <p>“ 11. A master owes no duty except to prevent wanton or wilful .injury to one who without protecting or promoting any interest of his own, assists in the master’s service.”</p> <p>. “ 15. It cannot be fairly presumed from the evidence in this case-that Lee had authority to ask of the plaintiff’s intestate temporary or transient assistance, whereby the defendant became responsible for Lee’s negligence.”</p> <p>“18. One who is employed by a servant as an emergency assistant in doing a master’s work, becomes subject to all the obligations of a servant, and can recover for injury only under the circumstances where a servant directly employed by the defendant could recover.</p> <p>“ 19. If the jury find that the work being done at the time of the injury of the plaintiff’s intestate, was being done by an independent contractor, the plaintiff cannot recover in this action.</p> <p>“20. If the jury find that the work being done at the time of the injury of the plaintiff’s intestate was done under the direction of the servant of Newell, the plaintiff cannot recover in this action.</p> <p>“21. If the servant of Newell had authority from Newell to direct the work of unloading the car, and Lee' had no such authority, the plaintiff cannot recover, if Lee, without authority from the defendant, wrongfully assumed to direct such work.”</p> <p>“23. If the plaintiff’s intestate was an employee of the defendant within the meaning of the workmen’s compensation act, there can be no recovery in this action.”</p> <p>“26. If the jury finds that Lee was in charge over Newell’s men, Paine and Gray; in unloading and moving the car, Bergeron by his act in helping did not become a servant of Newell.</p> <p>“27. If the jury find that Lee was in charge over Newell’s men, Paine and Gray, in unloading and moving the car, Bergeron by his act in helping became a servant of the defendant, rather than of Newell, and cannot recover.</p> <p>“28. In any event, Bergeron can be in no better position than that of a servant of the defendant, if the jury find Lee was in charge over Newell’s men, Paine and Gray.”</p> <p>The defendant’s fifth ruling, which, as stated in the opinion, was given, was as follows:</p> <p>“There is no evidence to warrant a finding that Lee had authority to bind the defendant in the matter of securing the aid of the plaintiff’s intestate in moving the car.”</p> <p>The jury found for the plaintiff in the sum of $1,750; and the defendant alleged exceptions.</p>

<p>Workmen’s Compensation Act, Procedure: deposition; Dependency.</p> <p>On an appeal to this court from a decree of the Superior Court, made in proceedings under the workmen’s compensation act on an appeal by the claimant from a decision of the Industrial Accident Board awarding compensation to the widow of a deceased employee as one partially dependent upon him, the record showed that the widow resided in Italy and was not present at the hearings, that, at the hearing before the single board member, the counsel for the insurer objected “to all witnesses on the ground that the widow is living and the statute provides a means for getting her testimony;” that, at the hearing upon a review of the decision of the single member at the request of the claimant, a motion of the claimant that she be permitted to take depositions of witnesses in Italy was denied, the action on the subject before the single board member being referred to in the record, and that, at the hearing before the Superior Court of an appeal by the claimant, a motion that the case be ordered reopened by the Industrial Accident Board for the purpose of the taking of depositions in Italy was denied. Held, that it could not be said that there was any reason to question the action of the single member of the Industrial Accident Board and of the full board in refusing to request the Superior Court, under St. 1911, c. 751, Part III, § 3, as amended by St. 1915, c. 27.5, to issue a commission for the taking of the deposition.</p> <p>In the case above described, no questions of law were raised at any of the hearings and it was held, that the decision of the Industrial Accident Board on the question of dependency, being one of fact, was final.</p>

<p>Tort for personal injuries received by the plaintiff when he ]vas struck by a passing electric street car of the defendant. Writ dated December 19, 1916.</p> <p>In the Superior Court the action was tried before Fox, J. The material evidence is described in the opinion. There was evidence of due care of the plaintiff and of negligence of the motorman of the car in question. The defendant asked for a ruling that there was no evidence of negligence on the part of the conductor. The request was refused. The jury found for the plaintiff in the sum of $3,100; and the defendant alleged exceptions'.</p>

<p>Way, Private. Deed, Construction, Conveyance by reference to plan. Easement.</p> <p>At the hearing Of a petition for the registration of the title to certain land, the following facts appeared: The owner of a nine acre tract of land caused a plan to be prepared dividing it into forty lots and four ways, called, respectively, C Avenue and W Avenue, which ran east and west, and M Avenue and L Avenue, which ran north and south. He then first conveyed a portion of the tract, described as one tract by metes and bounds, which was bounded by C Avenue and L Avenue and also was referred to by the numbers of the lots on the plan, to a predecessor in title of the petitioner, the deed carrying title to the middle of L Avenue. The next land conveyed from the tract was to the immediate predecessor in title of the respondent, and conveyed, as one tract, a strip of land lying southerly of the strip in which was situated the land previously conveyed, describing it as one solid tract without reference to its lot numbers on the plan. This conveyance included the entire fee of W Avenue and all the remaining lots on both sides of L Avenue, excepting those opposite the lots already conveyed to the petitioner’s predecessor in title, and included the fee of L Avenue between the lots included in the deed, and the only reference to L Avenue in the deed was a statement that one boundary line of the land described ran “acrossi land marked L Avenue.” Later the petitioner acquired title to the lots opposite those formerly conveyed to him on L Avenue, the grantors conveying, “so far as we are enabled to,” a right of way “in common with others . . . in and over the streets and Avenues shown on said plan.” In this deed there also were restrictions requiring a set-back of buildings on L Avenue. Held, that</p> <p>(1) A finding was warranted that, by the second deed from the tract, which was that to the respondent’s immediate predecessor in title, the original owner disclosed a purpose not to follow, but to abandon the layout of the plan;</p> <p>(2) A further finding was warranted that the original owner by the deed to the respondent’s predecessor in title intended to convey the fee in W Avenue and in that part of L Avenue included in the solid tract described without giving to the grantee any easement in the rest of L Avenue;</p> <p>(3) That a decree was warranted registering in the petitioner the unincumbered title to that part of L Avenue which lay between the land on both sides of it owned by him.</p>

<p>Bill in equity, filed in the Superior Court on August 9, 1917, alleging that the defendant, as administrator of the estate of one Mary De Castro, was in possession of a mortgage upon certain real estate owned by the plaintiffs, which he intended to foreclose, contending that there was a balance due thereon; that the defendant’s intestate previous to her death had made a gift to the plaintiffs of the balance due on the mortgage. The prayers of the bill were that the defendant be restrained from foreclosing the mortgage and be ordered to execute and deliver a discharge of it.</p> <p>The suit was referred to a master. Material findings of the master are described in the opinion. The suit was heard upon the pleadings and the master’s report by Jenney, J., who ordered the report confirmed and the bill dismissed with costs. The plaintiffs appealed.</p>

<p>Two bills in equity, filed in the Superior Court on January 11, 1918, and November 28, 1917, respectively, under St. 1915, c. 292, § 4, as amended by St. 1916, c. 306, § 3, to enforce mechanics’ liens upon the interest of the Strand Realty Company in certain real estate in Lowell in favor of the plaintiffs, who were subcontractors under A. B. Beal Construction Company, a corporation, the assignee from A. B. Beal of the general contract for the erection of the building for the Strand Theatre Company, described in the opinion. The debt alleged to be due to the first plaintiff was $5,580.94, and that alleged to be due to the second plaintiff was $1,252.74.</p> <p>The suits were consolidated, and issues were referred to a jury for trial to determine whether a “statement” was filed by each plaintiff "within thirty days after the date on which the principal contract was to be performed under any extension thereof.” These issues were tried before J. F. Brown, J.</p> <p>The material evidence is described in the opinion. At the close of the evidence, the judge ordered the jury to answer the issues in the negative and reserved and reported the cases, with all the evidence, for determination by this court.</p>

<p>Trust, Investments by trustee. Massachusetts Electric Companies.</p> <p>A trustee under a will, which, as to the trust funds, directs him to “keep the same safely and profitably invested in real or personal property, mortgage notes, bonds, stock ór any such other conservative investments as in his discretion he may approve,” is bound, as to investments, only to conduct himself faithfully and to exercise a sound discretion: to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of the capital to be invested.</p> <p>A trustee under the will above described invested trust funds in thirty so called preferred shares of the “Massachusetts Electric Companies” in 1903 and retained them until 1917, when he filed his first account. Upon a hearing, on an appeal from a decree of the Probate Court allowing an account which included such investment, the following facts appeared: “Massachusetts Electric Companies” was the business title of trustees under an agreement and declaration of trust under the provisions of which there was placed in the hands of the trustees a large and controlling majority of the capital stock of thirty-six street railway and electric light corporations in Massachusetts, Rhode Island and New Hampshire, operating mainly in Massachusetts, the business of the trustees being the holding of the stock of the subsidiaries and the supervising of their management by means of stock control and assisting in their financing. The trustees issued to the original subscribers to the agreement and,declaration of trust negotiable certificates of “preferred” and “common” shares of the par value of 3100 each, and it was provided that they should not issue more shares, except that, upon vote of two thirds of the shareholders, further shares might be issued for the acquiring of further property for the trust. The trustees were elected by the shareholders'from time to time and were given exclusive power to manage and control the properties in their hands, holding the shareholders harmless for their acts to the extent of the property of the trust but not personally, and not being liable for acts done in good faith or for errors of judgment or acts of their agents. The trustees were given no power to bind the shareholders personally, and all their contracts were so to stipulate. At the termination of the trust, the property was to be liquidated and divided among the shareholders, priority being given to the holders of preferred shares. The holders of preferred shares were entitled to a cumulative semiannual dividend at the rate of four per cent. In making the investment in question, the trustee acted in good faith. Previous thereto a large number of trustees inMassachusetts had invested in shares of the same security and were retaining their investments. Before investing, the trustee made reasonable inquiry among bankers and brokers and received favorable opinions of the investment. He paid $88.75 per share. Regular dividends on the shares at the rate of four per cent were paid to and including July 1, 1904; no more were paid until January 1, 1909; after July 1, 1910, and up to July 1, 1917, dividends averaged two per cent per annum, an issue of a seventeen and three quarters per cent dividend being made in new preferred stock in 1912 to satisfy accumulated dividends. The market value of the shares fluctuated widely after 1911, never was equal to the price at which the trustee purchased, and in August, 1917, was not higher than $25 per share. It was agreed that, “except in so far as the propriety of retaining the investment was affected by the character of the organization in contemplation of law, there was nothing in the future outlook of the Massachusetts Electric Companies and its subsidiaries which required the trustee as a matter of sound discretion to dispose of the shares.” Upon a report and reservation by a single justice of the questions, whether the organization of the Massachusetts Electric Companies was such that the investment was proper as a matter of law or whether, if the original investment was proper, its retention was improper, it was held, that</p> <p>(1) The reservation required a determination of the question, whether a finding that such investment was proper as a matter of fact must be pronounced wrong as matter of law;</p> <p>(2) It could not be said that, at the time of the investment, it was improper and unwarranted as matter of law;</p> <p>(3) It was not necessary to determine whether the agreement and declaration of trust constituted a partnership among the shareholders, or a trust;</p> <p>(4) Assuming, without deciding, that a partnership among the shareholders was constituted by the agreement and declaration of trust, it was not a commercial or trading partnership, but a partnership of a peculiar kind, and its character did not as matter of law render the investment unwarranted;</p> <p>(5) The facts showed that good faith and sound discretion were exercised in making the investment (following Harvard College v. Amory, 9 Pick. 446);</p> <p>(6) The retention of the shares until August, 1917, could not be held as a matter of law to be unwarranted.</p>

<p>Bill in equity, filed in the Probate Court on August 19, 1918, by Ethel B. Lamb, a beneficiary under the will of William McKie, late of Winthrop, for a construction of the will.</p> <p>The provisions of the will are described'in the opinion.</p> <p>The suit was heard in the Probate Court by Grant, J., and by his order a decree was entered that “William H. Rome, Ethel B. Lamb, William McKie, and Edward McKie, take only under clauses two, three, or four of said will and are excluded from the terms of the residuary clause.” Ethel B. Lamb appealed.</p> <p>The appeal was heard by Crosby, J. Certain letters and other evidence, extrinsic to the will, were offered in evidence and excluded by the single [justice, who made the following rulings:</p> <p>“The question is whether William H. Rome and Ethel B. (Rome) Lamb, grandchildren of the testator, mentioned, respectively, in the second and third clauses, also take under clause five, the residuary clause of the will. Neither of the above-named grandchildren contested the will, which was duly allowed by the Probate Court for the County of Suffolk.</p> <p>“In my opinion the language of the will is clear and free from ambiguity, and extrinsic evidence to show the intent of the testator is immaterial and inadmissible.</p> <p>“It.seems plain that if either of these grandchildren contested the allowance of the will, they were to take nothing either under the second and third clauses or under the residuary clause. As they did not so contest, I find and rule that they respectively take under the second and third clauses and also under the residuary clause:</p> <p>“The provision in the residuary clause that the devises therein given are ‘subject to the conditions heretofore set forth’ relates only to the Conditions contained in the second and third clauses, namely, that if either grandchild contests the will the grandchild so contesting shall take nothing under either clause.</p> <p>“I also rule that the grandchildren William McKie and Edward McKie, children of Eldred E. McKie, deceased, are beneficiaries under clause four, and also take under the rest-and-residue clause.”</p> <p>A final decree was entered, reversing the decree of the Probate Court and remanding the case to that court for further proceedings, in accordance with the order of the single justice, from, which the other beneficiaries under the will appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 9, 1913, to establish a trust in the plaintiff’s favor to an undivided one third interest in certain real estate in the State of Montana, ■ the legal title to which stood in the name of the defendants, and praying that they be required to execute and deliver to him a conveyance of an undivided one third interest in the property.</p> <p>Proceedings in regard to a motion of the plaintiff to strike out a portion of the defendants’ amended answer and its allowance, and in regard to a cross bill and,, the sustaining of a demurrer thereto are described in the opinion.</p> <p>The suit was referred to a master. Such of the facts found by ' him as are material to the decision are described in the opinion. The defendants also moved for leave to amend their amended answer by setting up the defence that, because the plaintiff sought to defraud the Bitter Root Valley Irrigation Company into paying him a commission, he could not, claim the relief sought; and also moved that the master be instructed to make certain findings and to report the evidence. All of these motions were heard by De Courcy, J., and were denied. The single justice then reserved the case for determination by the full court “upon the pleadings, decrees thereon, appeals from said decrees, said motions and the master’s report.”</p>

<p>Tort for personal injuries. The declaration alleged that, while the plaintiff was a passenger upon a street railway car of the defendant, “the defendant and its servants and agents, then and there negligently caused said car to be thronged, packed and overcrowded with passengers, whereby, and by reason thereof, the plaintiff was violently thrown from said car.” Writ dated October 20, 1917.</p> <p>In dhe Superior Court the action was tried before Irwin, J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The plaintiff called the attention of the judge to that part of R. L. c. 112, § 69, (now St. 1906, c. 463, Part III, § 96,) which reads as follows: "Every street railway company shall furnish reasonable accommodations for the conveyance of passengers, and for every wilful neglect to provide such accommodations shall forfeit not less than five nor more than twenty dollars.”</p> <p>The judge referred to the statute above quoted and charged the jury in substance that, if the defendant failed to comply with this statute and its failure to do so contributed to the injury received by the plaintiff, such failure on the part of the defendant was evidence of negligence. To this part of the charge the defendant excepted, contending that the statute was not applicable to the case on trial.</p> <p>The .jury returned a verdict for the plaintiff in the sum of $1,500, and, in pursuance of an agreement between the parties, the judge set the verdict aside, ordered the jury to return a verdict for the defendant, and reported the case for determination by this court upon the following terms: If there was sufficient evidence to entitle the plaintiff to have the case considered by the jury, judgment was to be entered for the plaintiff in the sum of $1,500, with interest from February 7, 1919, and costs; otherwise, judgment was -to be entered for the defendant upon the verdict.</p>

<p>Equity Jurisdiction, Suit by executor named in unproved will to enjoin contest in violation of antenuptial agreement, Specific performance. Contract, Ante-nuptial agreement, Construction, Implied, Performance and breach. Husband and Wife. Equity Pleading and Practice, Requests and rulings, Exceptions.</p> <p>A suit in equity may be maintained to enjoin the widow of a testator from contesting the proof of bis will, if by so doing she violates the provisions of an ante-nuptial agreement between herself and the testator which was fully performed by him.</p> <p>Where in an antenuptial agreement a man agrees with a woman whom he is intending to marry to provide by his will that she shall have a certain portion of his estate and she agrees to accept that portion in full of dower and of other rights which otherwise she might claim from his estate, there is an implied term of the agreement that, if the man fully performs all that the agreement requires of him, the woman will not contest the proof of a will made by the man in performance of the agreement.</p> <p>One named as executor of a will made in performance of an antenuptial agreement of the character described above, in case the widow undertakes to contest the proof of the will, has sufficient interest to maintain a suit in equity to enjoin such contest although he has not yet been appointed executor.</p> <p>Where a man and a woman, who are about to become husband and wife, undertake to establish by contract their respective property rights in the estate of the first to die, while the contract is to be construed according to its words, the parties do not stand at arm’s length toward one another, and their relation is such that they are held to reasonableness and good faith toward one another in its performance.</p> <p>While a man, who has entered into an antenuptial agreement with a woman, who becomes his wife, to give to her by will a proportional part of his estate, may make gifts during his life without breaking such agreement if 'the gifts are made in reasonableness and good faith toward his wife, having regard to all the circumstances, he cannot make gifts, either absolutely, conditionally, indirectly or otherwise, for the main purpose of defeating the provisions of the agreement and of preventing it from operating for the wife’s benefit.</p> <p>A widower with three sons made with a woman whom he was about to marry an agreement which provided that he by his will, after legacies and bequests which should not exceed a certain percentage of his estate, should divide the rest of his estate into equal parts, one more in number than he left children or issue of deceased children surviving him, and that one of such parts should be given to each' such child or issue of a deceased child and one part to his wife, . her part to be held in a trust. Some years after the marriage, he became estranged and lived apart from his wife and his mind was centered upon the predominant purpose of so dealing with his property as to increase- in so far as possible the share of his sons therein in rectification of what he considered the financial wrong done to them by the antenuptial agreement. Accordingly previous to his death he made various dispositions of his property for his sons’ benefit, giving them large portions of it. The final form of his will provided for a trust of one fourth of' the residue of his estate for the benefit of his wife, the language following substantially the language of the ante-nuptial agreement. The widow contested the will. The persons named as executors in the will brought a suit in equity to enjoin her from prosecuting her contest and from urging a petition for a widow’s allowance, and to have specific performance of the antenuptial agreement ordered. The suit was heard by a single justice, who ordered that it be dismissed. Upon exceptions by the plaintiffs it was held, that a finding was warranted that the husband had not carried out the antenuptial agreement with reasonableness and good faith, and that the suit must be dismissed.</p>

<p>Appeal by the administratrix of the estate of Frank E. Chandler, late of Medford, from so much of the decree of the Probate Court for the county of Middlesex, upon a petition by her for the allowance of certain claims made by her personally against the estate, as disallowed a claim upon a promissory note of Frank E. Chandler, the intestate, payable to Joseph C. Chandler and indorsed by Joseph C. Chandler to the petitioner, for $25,000 and interest, and a claim, in the sum of $7,944, upon an account annexed for money lent, services as housekeeper and services as treasurer and general manager of a milk business.</p> <p>Issues were framed for trial in the Superior Court as follows:</p> <p>“ 1. Is the estate of Frank E. Chandler indebted to Margaret A. Crowdis upon the promissory note for $25,000.00 dated June 1, 1895. . . . and if so, for how much? ”</p> <p>“2. Is the estate of Frank E. Chandler indebted to Margaret A. Crowdis upon the account annexed . . . and if so, for how much? ”</p> <p>The issues were tried in the Superior Court before Hitchcock, J. The material evidence is described in the opinion. At the close of the evidence the respondents moved that the jury be ordered to answer both issues in the negative. The motions were denied. Special questions submitted to the jury in connection with the first issue, certain instructions of the judge to the jury excepted to by the respondents, and the answers of the jury to the special questions and to the issues, are described in the opinion. The respondents alleged exceptions.</p>

<p>Contract, as amended, against forty-nine individuals, alleged to be doing business under the name and style of Buena Vista Fruit Company, upon twelve promissory notes dated, ten in January, one in February and one in May, 1915, in eleven of which the Buena Vista Fruit Company was named as payee and on the back of which the name of the payee was indorsed, and one of which purported to be signed by the Buena Vista Fruit Company. Writ dated April 6, 1915..</p> <p>The action was referred to an auditor. Material facts found by him are described in the opinion. The action was heard by Morton, J., without a jury, upon the notes and the auditor’s report as evidence. The defendants asked the judge to rule as follows: “1. On all the evidence the plaintiff is not entitled to recover. “2. On all the evidence the plaintiff, if entitled to recover at all, can do so only against the original shareholders who now survive, viz., Carlton, Graves, Dunning and Thompson.</p> <p>“3. The plaintiff, if entitled to recbver at all, can do so only against the defendants, Carlton, Graves, Dunning and Thompson, who were the original shareholders, and the defendants, Hersey, Boyden, Litchfield and Taylor.</p> <p>“4. None of the defendants are partners in the Buena Vista Fruit Company.</p> <p>“5. If any partnership exists, it is only between the surviving original shareholders, viz., Hersey, Boyden, Litchfield and Taylor.</p> <p>“6. None of the defendants, except the original shareholders, are bound by the by-laws later adopted by them, nor by the acts of the acting treasurer under and by virtue of said by-laws.</p> <p>“7. The burden is on the plaintiff to prove that the defendants, even if they were partners, authorized the signing and indorsing of the notes in suit, and the evidence does not justify a finding to that effect.</p> <p>“8. The plaintiff, if entitled to recover at all, can do so only upon the notes in which the Buena Vista Fruit Company is maker.</p> <p>“9. There is no authority shown in Morris to indorse the notes in suit, so as to bind the individual defendants.</p> <p>“ 10. If a partnership was created by the declaration of trust, so that the original five shareholders became partners, the mere fact of the remaining defendants purchasing shares of stock in said trust from time to time and receiving therefor certificates such as the one set forth in the auditor’s report, did not create a partnership between them, and the original shareholders, in view of the finding of the auditor that it was not the intent of any of them to create such a partnership.”</p> <p>The judge refused so to rule and found as follows: “I find and rule that all of the defendants are partners and are bound by the by-laws and by the acts of Morris, as acting treasurer; that the notice of protest was sufficient and that each of the defendants is liable upon the notes.” He found for the plaintiff for the full amount of the notes and interest, $5,456.83; and the defendants alleged exceptions.</p>

<p>Pledge. Conversion. Damages, In tort. Practice, Civil, Record.</p> <p>Where, in an agreement pledging certain personal property to secure the payment of a note of the pledgor, it is provided that, in case of bankruptcy of the pledgor, the note shall forthwith become due and payable and the pledgee is empowered “to sell, assign and deliver the whole or any part of said security . . . at public or private sale, without demand, advertisement or notice of any kind, which are hereby expressly waived,” and that at such sale the pledgee may purchase the whole or any part of the property pledged, free from any right of redemption on the part of the pledgor, the pledgee, in any sale of the pledged property made upon the pledgor becoming bankrupt, must act in good faith and use every reasonable effort to protect the interest of the pledgor.</p> <p>If the pledgee, in the agreement above described, is a corporation doing business in Boston, whose entire common stock is owned by a corporation doing business in Springfield, by which it is managed and controlled, and, acting under orders of and in combination with the Springfield corporation, upon the bankruptcy of the pledgor, for the sole purpose of benefiting the two corporations, sells and ships the pledged property to the Springfield corporation at a price below the market price and it is sold by the Springfield corporation within thirty days at a very substantial profit, such a sale to the Springfield corporation may be found to be fraudulent and voidable at the election of the pledgor and to amount to a conversion.</p> <p>It is not a condition precedent to a right on the part of the trustee in bankruptcy under the circumstances above described to maintain an action of tort for conversion against the pledgee and the Springfield corporation that a tender first should be made to the pledgee of the amount to secure which the pledge was made, since the pledgee had put it out of his power to return the property.</p> <p>In such an action against the pledgee and a confederate for conversion of the pledged property by a wrongful sale, the plaintiff may recover the fair market value of the pledged property less the amount of the debt for which the goods were pledged.</p> <p>A bill of exceptions saved by the defendants at the hearing by a judge without a jury of such an action, while it stated that the judge found for the defendants and what he found to be the value of the property at the time of the conversion, did not state the amount of the finding. The plaintiff’s counsel in his brief stated that the judge made a deduction of the amount of the debt in making his finding, and, from the amount of the finding stated in the copy of the finding transmitted to this court with the papers in the case and from the fact that the defendants’ counsel did not contend to the contrary, it was held that the judge in his finding had deducted the amount of the debt from the amount for which the property should have been sold.</p>

<p>Practice, Civil, Verdict, Exceptions, New trial, Requests and rulings. Landlord and Tenant, Landlord’s liability in tort to tenant and members of his family, Repairs. Negligence, Causing death, Of one controlling real estate, Assumption of risk. Contract, Consideration. Custom. Evidence, Custom, Presumptions and burden of proof. Witness.</p> <p>Where a declaration in an action of tort contains counts alleging liability of the defendant upon different grounds and the jury return a general verdict for the plaintiff, the verdict, in the absence of other reversible error, must stand if there was sufficient evidence to warrant a finding for the plaintiff upon any count.</p> <p>Where the owner of a. tenement house orally lets to a tenant one floor without any agreement as a part of the contract of letting that he would assume the duty of looking after the condition of the premises as to safety from time to time and of doing whatever is necessary to that end whenever occasion arises, he cannot be held liable for personal injuries suffered by the tenant or a member of his family by reason of a defective condition of the premises let unless he has undertaken to make the repairs and has made them negligently.</p> <p>If the landlord under the tenancy above described undertakes by a contract with the tenant to make certain repairs on the premises and makes the repairs negligently, he is liable for injuries resulting therefrom not only to the tenant but to all persons who within the contemplation of the parties were to use the premises under the tenancy.</p> <p>If the landlord under the tenancy above described undertakes gratuitously to make certain repairs, he is not liable for personal injuries, not resulting in death, caused by ordinary negligence in making the repairs, but only if such injuries result through his gross negligence, and then only to the person with whom he makes the gratuitous undertaking.</p> <p>If the landlord under the tenancy above described undertakes gratuitously to make certain repairs, and the death of the person, with whom he so undertakes, is caused by ordinary negligence on his part, he is liable, under R. L. c. 171, § 2, as amended by St. 1907, c. 375, for causing such death, but he is not liable for the death of any other person caused under such circumstances by either ordinary or gross negligence on his part.</p> <p>At the trial of an action by the administrator of the estate of the wife of a tenant, occupying one floor of a tenementhouse under a tenancy such as above described, against the landlord for causing conscious suffering and death of the wife by reason of a fall in January of a certain year due to the giving way of a railing of a piazza, which, in two counts of the declaration, it was alleged the landlord had undertaken to repair and had repaired negligently, there was evidence tending to show that, during the previous summer, the tenant in the presence of the deceased had said to the son of the defendant that the railing was unsafe and that he would move out if it was not fixed; that the son replied that “he guessed there was no need to move out” and that he would see his father about it; that the following Saturday the son returned and made the repairs; that the son made repairs when told to do so by the defendant and that in August of a year or two before the accident the son had reported to the defendant that the tenant and his family "wanted some work done” and that the defendant then had the son make some repairs. It was conceded that negligence in repairing the railing caused the injury to the tenant’s wife, and that the cost of properly repairing the railing was not more than $2. Held, that</p> <p>(1) A finding was warranted that the son made the repairs upon the railing under the authority of the defendant;</p> <p>(2) A finding was warranted that the defendant undertook to make the repairs for a consideration, namely, to induce the tenant to continue his occupancy;</p> <p>(3) That the plaintiff was entitled to go to the jury on the two counts above described because his intestate, the tenant’s wife, belonged to the class contemplated by the parties as entitled to use the demised premises.</p> <p>At the trial above described, there was admitted, subject to exceptions by the defendant, evidence tending to show that throughout the district where the tenement house in question was situated and at the time the premises were let, there was a custom that it was the duty of the landlord to make repairs upon railings of piazzas which were a part of the premises let. Held, that the evidence was inadmissible. Following Conahan v. Fisher, ante, 234.</p> <p>In the same action there were further counts in the declaration which alleged that the repairs upon the railing of the piazza were made gratuitously by the landlord and that through negligence in making them the railing broke, causing the conscious suffering and death of the tenant’s wife. There was, besides the evidence above recited, further evidence that the wife asked the defendant’s son to make the repairs and spoke of the complaint of her husband, that she was present at the conversation, above described, between the defendant’s son and her husband and that after the repairs were made, the defendant’s son assured her that the piazza was safe. Held, that the evidence warranted a finding of a gratuitous agreement by the defendant with the wife to make the repair, lack of which caused her injury.</p> <p>In the two counts of the declaration last above described, there was no allegation that the injury to the plaintiff’s intestate was due to gross negligence of the defendant. No question of pleading was raised. A request of the defendant asked the judge to rule that the plaintiff could not recover unless there was an agreement between the defendant and the deceased wife “to make repairs, negligent making of them and an injury to her in consequence of such gross negligence.” The judge instructed the jury that the plaintiff might recover if the defendant “undertook to make repairs in a gratuitous way for the wife, and he assured her the premises were safe after he made them, and she was injured as a result of negligence in making the repairs, even though gratuitously undertaken.” Held, that the request for a ruling, although not strictly accurate, was sufficient to direct the judge’s attention to an important principle of 1 law, that he had misstated that principle, and that harmful error thus was committed.</p> <p>It appearing that the jury were not asked to consider the custom, above described, in connection with the two counts which relied on a gratuitous undertaking with the wife, it also was held, that, ordinary negligence of the defendant being conceded, the one of these two counts of the declaration which alleged negligence of the defendant as the cause of the death of the wife properly was submitted to the jury.</p> <p>At the trial above described, the defendant was called as a witness by the plaintiff, and, subject to exceptions by the defendant, was asked and was required to answer questions, whether any repairs, done on the premises in question before the accident and after the tenant was there, were done by his authority, whether it was his practice, whenever his son told him that the tenant wanted some repairs, to tell his son to go ahead and make them, and whether, if the son repaired the railing in question, he did it with the defendant’s authority. Held, that there was no error in permitting such examination.</p> <p>It also was held that, on the evidence above described, it could not be ruled as a matter of law that the plaintiff’s intestate assumed the risk of her injury.</p> <p>In the action above described, the jury found for the plaintiff in a single verdict, general respecting the counts and specifying that they assessed a certain amount of damages for the intestate’s conscious suffering and a certain amount for the causing of her death. Because there was no error at the trial as to the count for death caused by negligent performance of a gratuitous undertaking with the intestate, it was held, that the finding of the jury and their assessment of damages for causing the death, being general and warranted under one of the pertinent counts, should stand, although there was error at the trial as to the other count on that subject.</p> <p>It further was held, that, because of the error at the trial, above described, which related to both of the counts as to the conscious suffering of the plaintiff’s intestate, the defendant’s exceptions must be sustained and there must be "a new trial confined to those two counts.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 17, 1914, seeking to compel the return to the individual plaintiffs of certain shares of the stock of the plaintiff the Carleton and Hovey Company, alleged to have been transferred to the defendant under the provisions of an oral contract as to the financing of that corporation, which the defendants were alleged to have broken.</p> <p>The suit was referred to a master under a rule described in the opinion.</p> <p>The agreement in writing (“Exhibit A”) of July 23, 1904, was as follows, the testimonium clause and signatures being omitted: “Agreement made this twenty-third day of July A. D. 1904, by and between Aubert J. Fay and Edgar L. Fay, both of Lowell in the County of Middlesex and Commonwealth of Massachusetts, hereinafter called parties of the first part, and John C. Burke and James F. Corbett both of said Lowell, hereinafter called parties of the second part, witnesseth: —</p> <p>"Whereas said parties of the first part constitute the majority and principal stockholders of the Carleton & Hovey Company, a corporation duly organized under the laws of the State of New Jersey and having its principal place of business in said Lowell, and are desirous of obtaining additional financial aid for said Company; and</p> <p>“Whereas said parties of the second part have rendered and are about to render to said Company and to said parties of the first part, directly or indirectly, financial assistance as aforesaid.</p> <p>“Now, therefore, in consideration of the premises the said parties of the first part have this day transferred to said parties of the second part, each 2760 shares of the preferred stock (Certificates numbered A 104 and A 105) and 4135 shares of the common stock (Certificates numbered 118 and 119) of said Carleton & Hovey, they the said parties of the second part to hold said stock as collateral. And said parties of the second part hereby agree themselves to hold said stock as collateral as aforesaid but strictly in accordance with the terms of this agreement and subject to the terms of any subsequent agreement which may be made by and between the parties hereto and which by consent of the parties hereto may be considered as a part of these presents.</p> <p>“ Said parties of the second part further agree in the absence of default on the part of the parties of the first part to hold said stock but solely for the benefit of the said parties of the first part to account to the parties of the first part for all dividends declared upon said stock and for any other profits accruing to them as holders thereof. And said parties of the second part further agree at the termination of this agreement to transfer said holdings to said parties of the first part or their legal representatives or to any other person or persons by them properly designated. Said parties of the first part further agree during the existence of this agreement to devote their entire care and attention to the services of said Carleton & Hovey Company but without compensation other than that which may accrue to them as stockholders therein. Said parties of the first part also agree that the sum of money to be expended in any one year in the conduct of the company’s business shall not without consent in writing of all parties hereto be in excess of the amount to be hereinafter provided for in a subsequent agreement.</p> <p>“Said parties of the second part agree to continue the present management of the company’s business so long as said management adheres strictly to the terms of this or any subsequent agreement.</p> <p>“Said parties of the first part further agree not to operate in any new territory or to make any additional advertising contracts without the consent in writing of all parties to these presents.</p> <p>“And it is further agreed that upon the reorganization of the Carleton & Hovey Company that the present proportional interest of each party shall be preserved. Said parties of the first part also agree to furnish upon request upon all notes to be signed by said parties of the second part in pursuance of this agreement in addition to the name of Carleton & Hovey Company and their own personal signatures, the signature of Fay Bros. & Hosford. It is further agreed that the credit to be afforded shall not for the present exceed twenty-five thousand dollars and hereafter shall not exceed the sum to be named in a subsequent agreement to be hereafter executed by and between the parties hereto.</p> <p>"It is agreed that the subsequent agreement herein referred to shall be made and executed not later than three months from the date hereof. It is hereby agreed that in the event of failure to agree upon all the terms of the proposed subsequent agreement heretofore referred to, that either party may after a lapse of ten days from the date of said failure terminate this contract forthwith. And said parties of the first part hereby agree to pay to said parties of the second part as liquidated damages the stun of ten thousand dollars within thirty days thereafter, and will release or cause to be released the said parties of the second part from all liability as endorsers or otherwise incurred in consequence of this agreement. And said parties of the second part in that event agree to re-transfer to said parties of the first part their entire holdings of stock in said Carleton & Hovey Company.” Findings of the master as to this contract were as follows:</p> <p>“ Previous to July 23, 1904, neither Mr. Burke nor Mr. Corbett was the owner of stock in the company. On July 23, 1904, one hundred and twenty-five shares of preferred stock and one thousand four hundred and thirty-seven shares of common stock were transferred into the name of John C. Burke, and one hundred and twenty-five shares of preferred stock and one thousand four hundred and thirty-eight shares of common stock were transferred into the name of James F. Corbett. This stock came from A. J. Fay’s holdings and represented a quarter interest in the company, and according to the plaintiffs, was given in consideration of the alleged oral agreement to finance the company and, according to the defendants, was given in consideration of the execution and fulfilment of the terms of the written contract of July 23. For the purposes of the case, it is called the compensation stock. On the same day, July 23, 1904, there were handed to Messrs. Burke and Corbett certificates representing two thousand seven hundred and sixty shares of preferred and four thousand one hundred and thirty five shares of common stock. The certificates were indorsed in blank for transfer by their owner, Aubert J. Fay, but were never transferred on the books of the company. For the purposes • of the case, this stock is called the collateral stock. By using the collateral stock, Messrs. Burke and Corbett could dictate the management of the company as it constituted, with the compensation stock, a majority of both classes of stock, and, if transferred into their names, would give them the voting control of the company.</p> <p>“ The collateral stock was demanded by and given to Messrs. Burke and Corbett solely for the purpose of giving them the voting control of the company. It had no value as collateral for loans and was not intended to be used for that purpose. . . .</p> <p>“The compensation stock was not the consideration for an oral agreement, but was the consideration for the written agreement which was executed on the day the stock was transferred. . . .</p> <p>“The proposed subsequent agreement mentioned in the agreement of July 23, 1904, was never thereafter requested or suggested by either of the parties, and no such agreement was entered into.” The “collateral stock” all was returned to the plaintiff.</p> <p>Other findings of the master which are material to this decision are described in the opinion. Objections of the plaintiff to the report, numbering thirty-one, covered twenty printed pages of the record.</p> <p>The motion of the plaintiff for a report by the master of certain evidence, described in the opinion, and exceptions of the plaintiff to the master’s report were heard by Pierce, J. He denied the motion and by his order an interlocutory decree was entered overruling the exceptions and confirming the report, from which the plaintiffs did not appeal. Later a final decree was entered dismissing the bill, from which the plaintiffs appealed.</p>

<p>Contract by the Hampden Railroad Corporation against the Boston and Maine Railroad for alleged breach of an alleged contract in writing dated September 5, 1911, to lease the railroad of the plaintiff to the defendant. Writ dated July 1,1914.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The material facts are stated in the opinion. The “Agreement for Lease” described in the opinion was admitted in evidence subject to the defendant’s exception. At the close- of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Assignment. Insurance, Life.</p> <p>Where one having a wife and children has a policy of insurance on his life payable to his legal representatives, the equitable interest in the policy of any of the, persons who will be his next of kin and heirs at law in case he dies intestate is assignable during the lifetime of the insured, and if he dies intestate such assignment may be enforced in equity.</p>

<p>Bill in equity, amended from an action at law on February 1, 1917, by Michael H. Loonie against Frank E. Wilson and his trustee in bankruptcy, the National Surety Company, a corporation organized under the laws of New York and the city of Boston, to recover the sum of $1,413 due to the plaintiff by the defendant Wilson for teams and drivers furnished to the defendant Wilson for the performance of a contract between him and the city of ' Boston dated January 25, 1916.</p> <p>Four claimants filed petitions to intervene and were made addi= tional plaintiffs.</p> <p>The case was referred to a master, who filed a report containing the findings stated in the opinion. Article 7 of the contract mentioned above was as follows: “The City may retain out of any money due the Contractor such sum as the Commissioner shall direct as being required to settle claims for materials or labor furnished for carrying on the contract, notice of which claims, signed and sworn to by the claimants severally, shall have been filed in the office of the City Clerk of the City, and with the Commissioner, and claims against the City, its agents or employees, relating to the contract.” The master found “as a fact, in accordance with the agreement of all counsel, that the plaintiff and the other claimants knew of the provisions of the contract and bond and relied upon them in furnishing the men and teams.” The counsel for the trustee in bankruptcy and for the surety company objected to this finding as immaterial.</p> <p>The case was heard by Wait, J., who made the following memorandum of decision:</p> <p>“The bill cannot be maintained against the surety company. This follows from Hunter v. Boston, 218 Mass. 535.</p> <p>“It cannot be maintained upon the St. 1909, c. 514, § 23, for the statute does not apply to such a contract as is here before the court.</p> <p>“It can only be maintained if the language of the contract and the action of the city has created an equitable lien.</p> <p>“Clause 7 of the contract is largely without meaning, if it is to be construed as inserted to meet the requirements of the act of 1909. That act does not apply.</p> <p>“There is no rule of law or precept of public policy which forbids the city to put itself in a position where it can make certain that those who furnish service to it pay the bills they justly incur in the course of so doing. The city need not do it. Under this contract it is possible to say —s and courts in similar cases have said — that it is not bound to retain money from the contractor with which to pay for labor and materials and services connected with the work for which the contractor has failed to pay. But if it does retain money beyond what was necessary for its own protection under the provision of the contract, it may well be compelled to give to those who have relied upon the provision and acted under it, the benefit of its action.</p> <p>“In this case Boston did so retain money; the petitioners did rely on the provision of the contract; they did act under it in giving notice of their claims.</p> <p>“I rule that the evidence admitted by the master against the city and the assignee was material, and its admission was proper for the purpose of showing the circumstances surrounding the parties interested in the contract and interpreting their action.</p> <p>“The proof by the various petitioners in the bankruptcy of Wilson does not preclude them from this proceeding, though, anything received in the bankruptcy lessens the possible recovery here, as a credit in favor of Wilson,</p> <p>“Let decrees be prepared confirming the master’s report, dismissing the bill as against the National Surety Company with costs taxed as at law for that company; and ordering payment by the city of Boston of the amount retained by it to the petitioners in the amounts found due by the master, less any dividends received by them from the bankrupt estate of Wilson with costs taxed as at law against the city and the assignee.”</p> <p>Later, on June 29, 1918, by order of the judge a final decree was entered in accordance with this memorandum of decision.</p> <p>On July 5, 1918, Guy A. Ham, trustee in bankruptcy of Wilson, appealed from this decree. The subsequent proceedings are described in the opinion. The plaintiff Loonie appealed from the order of August 28, whereby the motion of the defendant Guy A. Ham, trustee in bankruptcy, was allowed, extending the time for the completion of his appeal to September 20, 1918.</p>

<p>Trust, Resulting. Limitations, Statute of. Laches. Evidence, Admissions, Of possession of, land. Corporation, Ultra vires.</p> <p>In a suit in equity by a street railway corporation, against one who had been the president of the immediate predecessor in title of the plaintiff and a controlling officer of earlier predecessors, to establish a resulting trust in a parcel of pasture land situated in two towns, -which was purchased in the name of the defendant twenty-seven years before the filing of the bill and was paid for by the defendant’s check for less than $1,200, there was evidence that the money with which the property was purchased belonged to the predecessor of the plaintiff’s predecessor in title and was not furnished by the defendant, that the property always was treated as belonging to the predecessor of the plaintiff and was entered thus on its books with the defendant’s knowledge, that it was conveyed with other property to trustees to secure certain bonds of that company, which afterwards were paid, that with the knowledge and consent of the defendant the property was taxed in both towns in which it lay to the plaintiff’s predecessor in title, which paid the taxes, that afterwards such taxes were paid by the plaintiff and that the defendant paid no taxes on the land at any time down to the filing of the bill, that the defendant made under oath annually for ten years returns to the railroad commissioners, which included an item stating that the land in question was owned by the plaintiff’s predecessor in title and not by the defendant. There also was evidence that the defendant recognized the rights of the plaintiff as the equitable owner of the land and never asserted an adverse title nor attempted to repudiate the trust before the bringing of the bill. There was nothing to show that the defendant ever had possession or occupation of the land. Held, that a resulting trust was established and that the defendant, or (the defendant having died) his heirs at law, must be ordered to convey the land to the plaintiff.</p> <p>In the case above described it also was held that, the defendant never having denied the plaintiff’s title before the bringing of the bill, the statute of limitations could not have begun to run in his favor.</p> <p>In the same case it was held that on the findings of the master the plaintiff’s claim was not barred by laches.</p> <p>In the same case it was held that the entries upon the books of the plaintiff and the returns made to the railroad commissioners were admissible upon the issues whether the defendant claimed any beneficial interest in the property or whether he recognized the plaintiff and its predecessors as its equitable owners.</p> <p>.In the same case it was held that the payment by the plaintiff and its predecessors of the taxes on the land was admissible to show that the defendant did not hold the title to the land as owner and that he never claimed to hold adversely to the plaintiff or those under whom it claimed.</p> <p>In the same case it appeared that the returns filed and sworn to by the defendant contained a statement that the land was “ owned by the company, needed in operating road,” and it was held that this was evidence warranting a finding by the master that the land was owned lawfully by the company and was not held ultra vires.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 28, 1913, by a mining engineer against a promoter of mining companies to compel the defendant to assign to the plaintiff certain mining shares as described in the opinion.</p> <p>On June 27, 1913, the case was referred to a master “to hear the parties and their evidence, to find the facts and report the same to the court.” The master’s report and supplemental report were filed on June 13 and September 23, 1918. The findings of the master material to the decision are stated in the opinion.</p> <p>The case came on to be heard before Crosby, J., and was reserved by him upon the pleadings, the master’s report and supplemental report, and the defendant’s exceptions thereto for determination by the full court.</p>

<p> Landlord and Tenant. </p> <p>Discussion by Rugg, C. J., of liability of landlord in case of tenancy at will for personal injuries caused by want of repairs.</p> <p>In an action by a tenant at will of a portion of a house of the defendant for personal injuries sustained in descending an outside flight of steps which were a part of the premises let to the plaintiff, there was evidence that the accident occurred by reason of a defective condition of the steps, but there was no evidence that the defendant knew or had notice of any defect. The plaintiff testified that at the time of the letting the defendant said that “he would care for the house and fix everything right along good and safe” and that he would repair any time “you want.” The defendant testified that, if he “knew there was a step broken or in condition to be dangerous,” he "would fix it.” It was held that the evidence warranted no further finding than that the defendant undertook to make necessary repairs on notice from the tenant, or possibly, if a defect came under his own observation, and did not warrant a finding that the defendant assumed the obligation of retaining such control of the premises as would enable him continuously to make sufficient inspection to detect and correct incipient defects, and that judgment should be ordered for the defendant.</p>

Tort for personal injuries sustained by the plaintiff on June 26, 1915, by being run into by a motor truck alleged to have been operated negligently by a servant of the defendants named Anglin. Writ dated December 18, 1915. In the Superior Court the action, together with another action against the White Company, from which the defendants had bought the truck, was tried before Fox, J. The evidence is described in the opinion.

Information, filed in the Supreme Judicial Court on December 3, 1918, by the Attorney General at the relation of the Treasurer and Receiver General against the Boston and Albany Railroad Company, alleged to be a corporation doing business for profit, to collect the additional tax imposed upon the net income of domestic corporations by St. 1918, c. 255.

Information, filed in the Supreme Judicial Court on December 3, 1918, by the Attorney General at the relation of the Treasurer and Receiver General against the Ware River Railroad Company, alleged to be a corporation doing business for profit, to collect the additional tax imposed upon the net income of domestic corporations by St. 1918, c. 255.

<p>Appeal by one named as executor in an instrument purporting to be the will of Albert Barlow, late of Milton, from a decree of the Probate Court for the county of Norfolk refusing to allow the said instrument as the will of said Albert Barlow; also an</p> <p>Appeal by Helen M. Barlow, widow of Albert Barlow, from the same decree; also a</p> <p>Bill in equity, filed in the Supreme Judicial Court on April 3, 1911, by the widow of Albert Barlow against a brother of the plaintiff’s husband, who was one of his heirs at law, alleging the facts which are stated in the opinion and praying that the defendant be enjoined from contesting the allowance of the will on the ground that it was revoked by the marriage of the plaintiff and Albert Barlow after its execution.</p> <p>The appeals from the decree of the Probate Court were heard by Braley, J., who found the facts which are stated in the opinion, and at the request of the parties reported the case for determination by the full court upon the pleadings and his findings of fact.</p> <p>In the suit in equity the defendant demurred to the bill, assigning the following causes of demurrer:</p> <p>"1. Because the plaintiff has not stated any cause of action nor alleged any facts which entitle her to relief in equity.</p> <p>“2. Because the plaintiff does not allege that the alleged agreement set forth in the plaintiff’s bill was in any way binding upon this defendant, or that he was a party thereto, or had any knowledge thereof.</p> <p>“3. Because said alleged agreement set forth in the plaintiff’s bill is not alleged to be in writing, and, not being in writing, is void under R. L. c. 74, § 1, cl. 3, and R. L. c. 74, § 6, and R. L. c. 153, § 26.</p> <p>“4. Because, it appearing by the bill that the marriage of the plaintiff to Albert Barlow was subsequent to the making and execution of the will of said Albert Barlow, and it not appearing from the will that it was made in contemplation of marriage, said marriage acted as a revocation of said will by force of R. L. c. 135, § 9.</p> <p>“5. Because the rights and remedies of the plaintiff are fully prescribed by law, and the plaintiff must resort to such.”</p> <p>The demurrer was argued before Braley, J., who made a final decree sustaining it, reciting that the plaintiff did not care to amend her bill and ordering that the bill be dismissed. The plaintiff appealed.</p> <p>An order was made by Braley, J., that the two cases should be argued together before the full court.</p>

<p> Tax. </p> <p>The tax imposed by U. S. St. 1916, c. 463, § 201 (39 U. S. Sts. at Large, 777), as amended by U. S. St. 1917, c. 159, § 300 (39 U. S. Sts. at Large, 1002), and U. S. St. 1917, c. 63, § 900 (40 U. S. Sts. at Large, 324), is an estate tax and not a legacy or succession tax, and, where the will of a testator makes no provision in regard to its payment, it must be paid out of the residue of his estate.</p>

<p>Landlord and Tenant, Eviction.</p> <p>The presence of cockroaches in an apartment leased for a dwelling, two years after the making of the lease, and an unsuccessful attempt of the lessor to destroy the cockroaches when notified by the lessee of their presence are not evidence of. an eviction of the lessee from the apartment.</p>

<p>Agency, Existence of relation. Insurance, Agent, Broker.</p> <p>An insurance broker, who solicits applications for insurance and delivers them to an agent of an insurance company, which issues policies upon them, is not on these facts an agent of the insurance company.</p> <p>If an insurance company sends to an insurance broker a notice addressed to a policy .holder, for whom the broker had obtained the policy, asking the insured to notify the company in case he wishes to renew his policy, this gives no authority to the broker to bind the insurance company by an oral contract of insurance or by an agreement to issue a policy.</p>

<p>Bill in equity, filed in the Superior Court on November 26, 1915, alleging that on October 29, 1915, the plaintiff recovered judgment in the Police Court of Springfield against the defendant Fred M. Moore for $90.70 damages and $11.87 costs of suit, in an action in which, on July 22, 1915, he had attached all the right, title and interest which the defendant Moore had in real estate in Springfield or elsewhere in the county of Hampden; that at the time of the attachment the defendant Moore owned by descent from his mother Helen E. Moore one' undivided third part of certain real estate in Springfield; that on or about August 31, 1915, the defendant Folsom as the administrator of the estate of Helen E. Moore sold said real estate for the payment of debts of the intestate and that there remained in his hands as surplus proceeds from the sale of the defendant Moore’s one third interest the sum of $775.85; that on or about September 30, 1915, the plaintiff notified the defendant Folsom of the pendency of his action in said Police Court and of his attachment of the defendant Moore’s property, and demanded that the defendant Folsom hold the share in the proceeds of the sale of said real estate belonging to the defendant Moore to satisfy such judgment, if any, as he might recover in said action; that on or .about October 29, 1915, he demanded of the defendant Folsom as administrator the payment of his said judgment against the defendant Moore, which demand was refused; and that afterwards and within thirty days from said October 29 he brought this bill. The bill recited the facts stated below in regard to the claim of the Western Massachusetts Cadillac Company and prayed that it might be made a party and that the plaintiff’s rights against it might be determined. There was a prayer that the defendant Folsom as administrator be ordered to pay over to the plaintiff from the funds in his hands and possession belonging to the defendant Moore the amount of said judgment with interest and costs; also a so called</p> <p>Cross bill, filed in the Superior Court on September 12, 1917, by the Western Massachusetts Cadillac Company, alleging that on April 8, 1915, this plaintiff sued a writ out of the Superior Court in an action of contract brought by it against the said Moore, upon which writ on April 9, 1915, attachment of all the right, title and interest which the said Moore had in real estate situate in said Springfield or elsewhere in the county of Hampden was made, which writ was returnable to the Superior Court on July 30, 1915, as of the first Monday of July, 1915, by agreement of counsel for both said plaintiff and defendant; that this plaintiff on said July 30 filed its petition that a special precept issue, directing the attachment of the goods, effects or credits of the defendant Moore in the hands and possession of the defendant Folsom, administrator, as trustee; that by virtue of such special precept attachment was made by trustee process of the goods, effects and credits of the defendant Moore in the hands and possession of the defendant Folsom as administrator, and he was summoned to appear and answer as alleged trustee on August 31, 1915, and September 9, 1915; that on December 6, 1915, this plaintiff secured judgment in said action against said defendant Moore for $1,500 damages, without costs, and against said defendant Folsom, administrator, as trustee, by default, he not having appeared or answered; that on January 3, 1916, this plaintiff sued a writ of scire facias against said defendant Folsom, as administrator, out of the Superior Court, and returnable on the first Monday of February, 1916, which writ was duly returned, and upon which judgment was entered against said Folsom, administrator, by default on March 6, 1916, for $1,522.20 damages, and $12.51 costs of suit; that this plaintiff’s rights in and to the money in the hands-and possession of the defendant Folsom are prior to and superior to those of the defendant William C. Bartlett and that this plaintiff is entitled to have said money applied to the payment of the amount of its judgment against the defendant Moore. The cross bill in addition to a prayer for this relief contained prayers, which are referred to in the opinion, for judgment against the defendant Moore and for determination of the company’s rights against the defendant Folsom.</p> <p>The answers both to the original bill and to the cross bill admitted all the allegations contained therein. It appeared by the allegations thus admitted that the plaintiff in the cross bill abandoned its attachment of April 9, 1915, and sought to pursue its remedy by its attachment by trustee process and by scire facias as stated above.</p> <p>The case came on to be heard before Hamilton, J., who at the request of the parties reserved and reported it upon the pleadings and the facts admitted therein for determination by the full court of all questions of law arising therefrom.</p>

<p>Two petitions, filed in the Superior Court on October 1, 1917, to vacate decrees of that court purporting to have been made under the workmen’s compensation act ordering the London Guarantee and Accident Company, Limited, to pay to the dependent widows of William E. Sterling and William L. Sterling each $10 weekly for a period of four hundred weeks from November 2, 1916, in accordance with agreements filed with the Industrial Accident Board on March .21, 1917; also</p> <p>Two petitions, filed in the Superior Court' on September 6, 1918, by the insurer for leave to file bills of review under general equity jurisdiction praying the court to review the decrees approving the said agreement of compensation; also Two bills in equity, filed on September 6, 1918, praying for injunctions to restrain the enforcement of the same decrees.</p> <p>The petitions to vacate the decrees were heard by J. F. Brown, J. The facts and the proceedings are described in the opinion. The petitions were denied as there stated and the insurer appealed.</p> <p>The bills of review were allowed to be filed by orders made on September 13, 1918. The cases were heard by J. F. Brown, J., who made decrees that the bills of review be dismissed. He also made decrees dismissing the bills in equity. The insurer appealed from all the decrees.</p> <p>St. 1911, c. 751, Part III, § 4, as amended by St. 1912, c. 571, § 9, is as follows: “If the association and the injured employee reach an agreement in regard to compensation under this act, a memorandum of the agreement shall be filed with the Industrial Accident Board and, if approved by it, thereupon the memorandum shall for all purposes be enforcible under the provisions of Part III, section eleven. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”</p> <p>St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, and St. 1917, c. 297, § 7, is as follows: “Any party in interest may present certified copies of an order or decision of the board, a decision of a member from which no claim for review has been filed-within the time allowed therefor, or a memorandum of agreement approved by the board, and all papers in connection therewith, to the Superior Court for the county in which the injury occurred or for "the county of Suffolk, whereupon said court shall render a decree in accordance therewith and notify the parties. Such decree shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though rendered in a suit duly heard and determined by said court, except that there shall be no appeal therefrom upon questions of fact, or where the decree is based upon a decision of a member or a memorandum of agreement, and that there shall be no appeal from a decree based upon an order or decision of the board which has not been presented to the court within ten days after the notice of the filing thereof by the board. Upon the presentation to it of a certified copy of a decision of the Industrial Accident Board ending, diminishing or increasing a weekly payment under the provisions of Part III, section twelve, the court shall revoke or modify the decree to conform to such decision.”</p> <p>The case was argued at the bar in December, 1918, before Rugg, C. J., Loring, Braley, De Courcy, & Pierce, JJ., and after-wards was submitted on briefs to all the Justices.</p>

<p>Evidence, Foreign law, Opinion: experts. Marriage and Divorce.</p> <p>At a hearing before a master, in a probate appeal where the validity of a marriage in the State of Rhode Island was in issue, certain sections of a statute of Rhode Island were put in evidence which never had been construed by the courts of that State. A member of the bar of Rhode Island testified to his opinion as to the correct construction of the statute. This was the only evidence on the subject except the statute itself. The master stated in his report that, if he was not bound by the testimony of the expert, he should make certain findings as to the validity of the marriage under the statute. Held, that the master had the right to disregard the testimony of the expert and to form his own opinion as to the legal effect of the statute.</p> <p>In the case above referred to the conclusion of the master, disregarding the opinion of the expert, was that the marriage in question was irregular because the ceremony was not performed in the city in which the license was granted as required by a section of the statute of Rhode Island, but that under another section of that statute the marriage, if otherwise valid, was valid in spite of such irregularity, and it was held that the master’s construction of the statute was correct.</p> <p>The consummation of a marriage by coition is not necessary to its validity.</p> <p>In the case above referred to, it also was held upon certain findings of the master that the surviving husband, although his marriage to the intestate was lawful, was not a suitable person to administer the estate of his wife and that on this ground a decree of the Probate Court appointing him administrator of her estate should be reversed.</p>

<p> Marriage and Divorce. Judgment. </p> <p>Where a divorce nisi was granted during the great war to one born in Germany, who filed his petition to become a citizen of the United States before the declaration of Congress that a state of war existed between the Imperial German Government and the United States but was naturalized by a decree made after that declaration, and where his libel for divorce was filed after the decree admitting him to citizenship, it is not open to the libellee to contend that the decree of divorce is invalid by reason of the fact that the libellant was naturalized unlawfully on an application made during the existence of the war, because the decree admitting the libellant to citizenship is conclusive as to all matters necessarily before the court that made it and involved in the issue, and can be impeached or annulled only by a direct proceeding brought for that purpose.</p>

<p>Bill in equity, filed in the Superior Court on December 13, 1917, under R. L. c. 159, § 3, cl. 8, by a judgment creditor of the defendant Improved Plastic-Slate Roofing Company, a corporation, to reach and apply to the payment of the judgment debt property of that defendant alleged to have been conveyed fraudulently to the defendant Browne-Mandile Company, alleged to have been formed for the purpose of receiving such property with the intent to prevent the plaintiff from obtaining satisfaction of his judgment.</p> <p>The case was heard by Chase, J., the evidence being reported by a commissioner appointed under Equity Rule 35. The judge made the findings which are quoted in the opinion. By his order a final decree was entered granting the relief prayed for. The defendants appealed.</p>

<p>Public Service Commission. Boston and Maine Railroad. Practice, Civil, Brief before full court. Corporation, Ultra vires. Constitutional Law.</p> <p>The jurisdiction given to the Supreme Judicial Court by St. 1913, c. 784, § 27; in equity to review, annul, modify or amend any rulings or orders of the public service commission extends to an order made by that commission in regard to the consolidation of the railroad companies constituting the Boston and Maine Railroad system and the reorganization of that system under Spec. St. 1915, c. 380, as extended by Spec. St. 1917, c. 323.</p> <p>Where the plaintiffs in their brief in a suit in equity to review an order of the public service commission in regard to a consolidation of railroad companies and the reorganization of a railroad system declined to discuss the validity of an “alleged debt” of $13,306,000, which was to be paid under the plan of reorganization, further than to restate their previous contentions, and the record disclosed evidence sufficient to determine the validity of this indebtedness, it was held that this equivocal position of the plaintiffs was not to be treated as an admission or a waiver, and the court proceeded to decide the question.</p> <p>On a bill in equity under St. 1913, c. 784, § 27, by minority stockholders of the Boston and Maine Railroad to review an order of the public service commission approving the agreement for the consolidation of the Boston and Maine Railroad system and the plan for the reorganization of that system, it appeared that the notes constituting the unfunded debt of the Boston and Maine Railroad outstanding on March 31, 1915, to be paid or funded under the provisions of Spec. St. 1915, c. 380, § 7, amounting to $13,306,000, all were authorized by votes of the directors, that all were sold for cash, that the proceeds all went into the treasury of the company and that no valid defence to any of the notes was shown, and it was held that the debt was a valid one.</p> <p>In St. 1898, c. 194, authorizing the Boston and Maine Railroad to purchase the shares of any railroad corporation whose road is leased to or operated by it, or of which it owns a majority of the capital stock, the means provided in § 2 of that statute for purchasing such shares by the issuing and sale of its own capital stock is not exclusive of other methods of purchase, and the money for the purchase may be provided by the sale of notes of the company.</p> <p>Even assuming that the purchase by the Boston and Maine Railroad of shares in its leased and subsidiary lines by means of the sale of notes was ultra vires, it could be and was ratified by subsequent legislation.</p> <p>Sections 2 and 6 of Spec. St. 1915, c. 380, giving the public service commission authority to approve certain acts of the Boston and Maine Railroad after notice and hearing, lawfully confer upon the commission administrative powers and quasi judicial functions.</p> <p>The provisions of Spec. St. 1915, c. 380, deal with a situation peculiar to the Boston and Maine Railroad and its leased lines, no other railroad corporation being similarly situated, and in no way violate the constitutional provisions requiring equal laws.</p> <p>The approval, in the_ order of the public service commission above referred to, of the issue by the Boston and Maine Railroad, upon vote of two thirds in interest of the common stock of that corporation, at any time before January 1, 1924, of one hundred and twenty thousand shares of first preferred stock at the par value of 812,000,000 for the purpose of paying an equal amount at par of bonds issued under the reorganization plan for the payment of the floating indebtedness, was held to be valid under the circumstances shown.</p> <p>In the case above described it appeared that a majority of the stock of the Boston and Maine Railroad was held and voted on at the stockholders’ meeting, at which the consolidation agreement and reorganization plan were approved, by the Boston Railroad Holding Company, and that the decree of a federal court by which the trustees of the stock of the holding company were appointed authorized them to aid in facilitating a reorganization of the Boston and Maine Railroad, and it was held that the directors of the holding company were authorized to vote on the stock.</p> <p>In the same case it was held that the delegation by the directors of the holding company of the casting of the vote to two of their number was proper, voting by proxy being authorized by St. 1906, c. 463, Part II, § 37.</p> <p>In the same case it was held that, the Boston and Maine Railroad being a Massachusetts corporation, voting by proxy at a meeting of its stockholders held here in accordance with Massachusetts laws was binding upon the corporation, even if it should be assumed that the law of New Hampshire, under the laws of which State the Boston and Maine Railroad also was,-incorporated, did not allow voting by proxy.</p>

<p>Res Judicata. landlord and Tenant. Evidence, Competency.</p> <p>At a second trial, after the sustaining of exceptions, of an action for rent alleged to be due under a lease in writing, where the defence alleged is an eviction of the defendant by the lessor and a surrender of the lease to the lessor by the defendant, evidence offered by the defendant to prove such eviction and surrender by the same facts that were in evidence at the former trial, on which the trial judge had found that there was no eviction and that the lessor had not accepted a surrender of the lease, is not to be excluded as res judicata, no final judgment having been entered.</p> <p>At the trial of an action for rent alleged to be-due under a lease in writing, where the defence was an alleged eviction of the defendant by the lessor and a surrender of the lease to the lessor by the defendant, evidence was offered and was excluded by the judge, that the defendant had ceased to occupy the leased premises, that the plaintiff’s agent made an agreement in writing with a third person to give him a lease of the premises conditional upon the forming of a trust company, that, after the making of such agreement, the plaintiff’s agent told the defendant’s agent that he, the plaintiff’s agent, had signed an agreement for a lease, and that the plaintiff’s agent when the defendant’s agent said to him, “ Then I am all through with the store and we have nothing more to do with it,” replied," You are all through with the store and have nothing more to worry about,” that the store was occupied for a number of months by one representing the prospective tenant under the agreement and that at the request of such prospective tenant the defendant’s agent delivered the keys of the premises to this occupant, that the rent paid by such occupant, until he vacated the premises, was paid over to and received by the plaintiff, and that no demand was made on the defendant for rent until after the application of the trust company for a charter was denied. There was other evidence offered and excluded tending to show a surrender of the lease and an eviction. Held, that the exclusion of the evidence was erroneous.</p> <p>The owners of a business building sold and conveyed the building and thereby assigned to the grantee an outstanding lease of a store in the building. The grantee leased the whole building to a new tenant for a long term, subject to the outstanding lease which he assigned to the new lessee. The lessee under the old lease paid no rent after that time. By agreement of the parties the grantors paid to the grantee the full amount of the rent under the old lease up to the time of its termination and the grantee paid this amount to his new lessee. Held, that the present lessee could maintain an action on the old lease against the lessee thereunder for the rent that had accrued after the lease and assignment to him, for the benefit of the grantors of the building, the lessors under the lease sued upon.</p> <p>In the action above referred to, a letter of one of the original lessors written after the sale and conveyance of the property, when he no longer was one of the owners, was held not to be competent evidence.</p> <p>In the same case evidence of a payment of rent by a former occupant of the store to a representative of the former owners, which was not in payment of rent that accrued after the lease and assignment, was held not to be admissible.</p> <p>In the same case it was held that evidence that no attempt was made by the former owners to collect rent from the defendant after a certain date was admissible as bearing upon the question of the surrender of the lease by the defendant to the original lessors.</p> <p>In the same case it was held that certain evidence, which was not admissible to prove the surrender of the lease, was admissible for another purpose for which it was offered.</p>

Two bills in equity, filed in the Supreme Judicial Court, as amended, on February 20, 1919, each by the Arizona Commercial Mining Company against the Iron Cap Copper Company, both being corporations organized under the laws of the State of Maine, having a place of business in Boston and conducting mining operations in the State of Arizona. The allegations of the bills are described in the opinion.

Libel for divorce, filed on June 14, 1917. The libel and the answer of the libellee are described in the opinion. The case was tried before Quinn, J. The facts in regard to the proceedings on the petition for separate support are stated in the opinion. The stenographic report of the evidence in those proceedings was put in evidence.

Renwick. The case was heard by De Courcy, J., who made certain findings of fact, including those that are stated in the opinion, and reserved the case for determination by the full court. The finding of the single justice in regard to an attesting witness of the will alleged to have been disqualified by interest was as follows: “A. Edwin Clark, Mr. Macomber’s attorney, was one of the attesting witnesses to the will. He became incapacitated December 3,1906.

Complaint, received and sworn to on June 19, 1919, in the District Court of Central Berkshire, charging that the defendant at Pittsfield on June 18, 1919, did use or drive an automobile in Pittsfield for the conveyance of persons for hire in the city of Pittsfield without having a license so to do.

Petition, filed on July 30, 1919, by ten qualified voters for a writ of mandamus addressed to the Secretary of the Commonwealth, commanding him to provide the petitioners with blanks for the use of subsequent signers of a petition, filed with the respondent under the provisions of art. 48 of the Amendments to the Constitution, asking for a referendum on a joint resolution of the General Court ratifying the proposed amendment to the Constitution of the United States extending…

Bill in equity, filed in the Probate Court for the county of Franklin on June 4, 1917, by the administrator of the estate of Nelson St. John, late of Greenfield, for instructions, as stated in the opinion. The Probate Court made a decree ordering that the fund of $5,090 in question be paid to the legal representatives of Nelson St. John, without qualification, and not directly to his children, and that the widow was entitled to share in the distribution.

Tort against a street railway company for personal injuries and damage to the plaintiff’s motor car sustained on the evening of April 30, 1918, and alleged to have been caused by the negligence of the defendant’s servants in the operation of an express car of the defendant on Union Street in the village of South Deer-field, in the town of Deerfield, which ran into the motor car of they plaintiff when the plaintiff was driving it across the defendant’s tracks on that street.

Contract, by the widow of Fred Adams Lelánd, late of Springfield, upon an accident insurance certificate issued by the defendant, a corporation organized under the laws of the State of Ohio, to. the plaintiff’s husband, in which the plaintiff was named as beneficiary, to recover for the death of the insured on January 17, 1916, alleged to have resulted from bodily injuries received on that day, “through external, violent and accidental means, which said injuries alone and…

Tort against a deputy sheriff for the alleged conversion of certain articles of personal property enumerated in the opinion. Writ dated May 12, 1914. On June 4, 1917, the defendant died and on motion of the plaintiff the administratrix of his estate was cited into court to defend the action. The case was tried before O’Connell, J., without a jury. The evidence is described in the opinion. The plaintiff asked for seven rulings.

Tort at common law for personal injuries sustained on July 5,1916, while in the employ of the defendant. Writ dated September 7, 1916. In the Superior Court the case was submitted to N.P. Brown, J., upon an agreed statement of facts, and no question in reference to the pleadings was raised by either party. The material facts are stated in the opinion.

Tort for personal injuries sustained by the plaintiff at about two o’clock in the afternoon of August 31,1916, when the plaintiff was walking on the sidewalk of Thomas Street, a public way in Worcester, by reason of being hit by an iron washer that came through a window of the adjoining building occupied by the defendant. Writ dated January 18, 1917. In the Superior Court the case was tried before Fox, J. The evidence is described in the opinion.

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board dismissing the claim of Wright Eckert against the town of Lee for compensation for an injury sustained on July 22, 1918, when he Was driving his team and was hauling a load of ashes for the town.</p> <p>The case was heard by Morton, J. The facts shown by the evidence reported are described in the opinion. St. 1913, c. 807, was not mentioned in the record but it was found that the town of Lee was "insured to pay compensation to its employees.” The judge made a decree that the claimant was not entitled to compensation and that his claim for compensation be dismissed. The claimant appealed.</p>

<p>Equity Jurisdiction, To redeem from mortgage.</p> <p>In a suit in equity by a second mortgagee of real estate to redeem the real estate from a first construction mortgage, it appeared that the first mortgagee was to advance an agreed sum of money in instalments, and that, after a schedule of payments had been prepared and before the first mortgage and the construction loan agreement had been executed, the mortgagor orally agreed with the first mortgagee, in consideration of his promise to make the loan, with the risk attendant thereon, and of certain services to be performed by him in connection with the loan, to pay him a bonus of an agreed amount The oral agreement for the bonus was not mentioned in the construction loan agreement in writing and was not known to the second mortgagee when he took his mortgage. One half of the bonus was to be deducted from the first advance by the first mortgagee and the other half from the third advance. There was no agreement, express or implied, that any part of the bonus should be remitted if the building was not completed or if the full amount specified in the schedule was not advanced. The first mortgagee performed his agreement in regard to services. After the third advance the mortgagor abandoned work on the building. Held, that the bonus was not a mere gratuity but that the contract for its payment was a valid one and that, in order to redeem the property, the plaintiff must pay to the first mortgagee the amount of the bonus in addition to the amount of money advanced by the first mortgagee.</p>

<p>Petition, filed in the Superior Court on April 15, 1916, by the town of Amherst, alleging that the petitioner had taken certain land on Main Street in that town for the purposes of a public library, that the respondent, Florence V. Gates, had some interest in the land, and that the parties had been unable to agree as to the amount of damage she had sustained by such taking; and praying that the amount of her damage, if any, might be determined by a jury in the manner provided by law.</p> <p>The case was submitted to Sisk, J., upon an agreed statement of facts. The record of a suit in equity brought on May 29, 1911, by the petitioner and others against the respondent to restrain her from building a house on the land, including a master’s report, was made a part of the' agreed statement of facts. This also contained a statement of the contentions of the respective parties, a statement that the parties waived a trial by jury and the following stipulation:</p> <p>“It is agreed by the parties that if the court shall find, as a matter of law, that said part of the respondent’s land, admitted by her to be subject to building restrictions, is also encumbered and subject to ‘park rights,’ as contended for by the petitioner, the finding of the court shall be for said Florence V. Gates, respondent, for the sum of thirty-five hundred dollars ($3,500) with interest from the date of the taking, March 31, 1916, and costs.</p> <p>“ If on the contrary, the court shall find as a matter of law, that said part, so admitted by said respondent to be subject to building restrictions, is not encumbered and subject to ‘park rights,’ as contended for by the petitioner town, 'then in that case the finding of the court shall be for said Florence V. Gates, respondent, for the sum of fifty-two hundred and fifty dollars ($5,250) with interest from the date of the taking, March 31, 1916, and costs.”</p> <p>The material facts are stated in the opinion. The judge reported the case for determination by this court, concluding his report as follows: “Upon the foregoing statement of facts signed by counsel I find that said restricted part of the respondent’s land was not encumbered and subject to ‘park rights,’ as contended for by the petitioner, and I find for the respondent Gates against the petitioner town in the sum of $5,250 and interest thereon from March 31, 1916. And costs. And at the request of the parties I report the case to the Supreme Judicial Cotut for final determination on said agreement of the parties.”</p>

<p>Bond, To secure release from arrest. Contract, In writing. Evidence, Extrinsic affecting writings. Practice, Civil, Ordering verdict. Words, “Avoid.”</p> <p>A bond given by a defendant arrested on mesne process to secure his release from arrest, which was not good as a statutory bond under R. L. c. 169, § 2, but was executed voluntarily by the defendant and was accepted at least impliedly by the plaintiff, was held to be valid as a contract at common law.</p> <p>In an action against the surety on the common law bond mentioned above, it appeared that the condition of the bond was that the defendant released from arrest “shall appear before the Justices of the said Court to be holden as aforesaid and answer to the plaintiff in said action and shall not avoid.” The defendant surety offered to show that, before signing the bond, she said in substance that she did not in' any way desire to make herself liable for the judgment. The trial judge excluded the evidence. Held, that the exclusion was right, as the defendant surety could not thus control or vary the obligation of the contract in writing.</p> <p>In the same case it was held, that, assuming that the words “shall not avoid” were of doubtful meaning, the circumstances under which the contract was executed and the facts to which it related could be considered in order to apply this language in accordance with the intention of the parties, such facts in the present case being before the court and undisputed.</p> <p>In the same case it was held that by the proper construction of the words “shall not avoid” in the condition of the bond quoted above the surety was bound to have her principal in court.when judgment should be obtained and execution issued against him, so that execution might be levied upon him.</p> <p>At a trial where the facts are not in dispute the presiding judge properly may order a verdict for the plaintiff upon a ruling of law.</p>

Bill in equity, filed in the Superior Court on May 5,1919, to enjoin the foreclosure of a mortgage purporting to have been made by the plaintiff and for its cancellation. The case was referred to a master, who filed a'report containing the findings that are stated in the opinion. Later the case was heard upon the master’s report by King, J., who made a final decree that the bill be dismissed with costs to be paid b/ the plaintiff to the defendant. The plaintiff appealed.

<p>Damages, For property taken or impaired by statutory authority. Way, Public. Contract, Construction. Interest.</p> <p>Owners of land abutting on a certain street in a city or included in a proposed new street made an offer in writing to the city that, if an order should be passed by the city council and should become effective by a certain date authorizing and directing a contemplated widening and laying out, “they will accept in full of damages for their land and buildings taken or injuriously affected thereby the amounts set opposite their respective names.” The time for passing the order was extended by the landowners and within the extended time the order was passed and the way was widened, laid out and completed. An order was passed by the city appropriating for the benefit of the landowners the amounts named in the offer in acceptance thereof. One of the landowners contended that he was entitled to interest on the amount awarded from the date of entry upon his land. Interest was not mentioned in the offer. Held, that the agreements contained in the offer accepted by the acts of the city were valid, and that the landowners, having agreed to accept the sums named “in full of damages,” were entitled to no interest.</p>

<p>Way, Public: assessment for betterments. Tax, Assessment for betterments. Words, “Alteration.”</p> <p>On a petition by the owner of land abutting upon a certain street in a city for a writ of certiorari to quash an assessment for betterments for the widening of the street for about nine tenths of its length to a certain point and the laying out of a new street from that point leading from the street as widened to another street, it appeared that the petitioner’s land abutted on the widened part of the pre-existing street and did not abut on the new street, and the petitioner contended that the assessment was illegal and void because it combined the widening of the pre-existing street and the laying out of the new street as the basis of assessment. The order of the city council, on which the assessment for betterments by the board of aldermen was based, included the widening of the pre-existing street and the laying out of the new street and had been held to be valid by a previous decision of this court. Held, that the order of the city council, correctly construed, amounted to an “alteration” of the pre-existing street as that word is used in R. L. c.'48, § 1, and in R. L. c. 50, § 1, as amended, relating to betterments, and that the order and the work done under it, including the widening of the pre-existing street and the laying out of the new street, constituted a single improvement and authorized the board of aldermen to assess betterments on the lands specifically benefited based upon the entire cost of the improvement as a whole. Accordingly the petition was dismissed.</p>

<p>Tort for personal injuries received by the plaintiffs when they were riding as guests in a motor vehicle which came into collision with a motor vehicle driven by the defendant at the intersection of Pawtucket Avenue and Waterman Avenue in the town of 'East Providence in the State of Rhode Island. Writs dated September 9, 1918.</p> <p>In the Superior Court the actions were tried together before Hammond, J., who at the request of the plaintiffs ruled that St.'-1914, c. 553, was applicable to the cases on trial although the injuries were received in the State of Rhode Island. The jury found for the plaintiff in the first action in the sum of $5,000 and for the plaintiff in the second action in the sum of $2,000; and the defendant alleged exceptions. -</p>

<p>The following order was passed by the Governor and Council on December 31, 1919, and on January 5, 1920, was transmitted to the Justices of the Supreme Judicial Court. On January 20, 1920, the Justices returned the answer which is subjoined.</p> <p>Whereas, in connection with the issue and approval of bonds issued and to be issued by the Commonwealth of Massachusetts the question has arisen whether the title of Treasurer and Receiver General of the Commonwealth, as established by the Constitution of 1780 and the amendments thereof, has been changed, by the rearrangement hereinafter referred to, to “Treasurer of the Commonwealth; ”</p> <p>And Whereas, under article XI of chapter VI of the Constitution of Massachusetts, as adopted in 1780, it is provided:</p> <p>“This form of government shall be enrolled on parchment, and deposited in the secretary’s office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws of this Commonwealth, in all future editions of the said laws.”</p> <p>And Whereas, articles 157 and 158 of the Rearrangement of the Constitution of the Commonwealth, as adopted at the State election held on the 4th day of November last, provide as follows:</p> <p>“Art. 157. Upon the ratification and adoption by the people of this rearrangement of the existing constitution and the amendments thereto,, the constitution shall be deemed and taken to be so rearranged and shall appear in such rearranged form in all future publications thereof. Such rearrangement shall not be deemed or taken to change the meaning or effect of any part of the'constitution or its amendments as theretofore existing or operative.</p> <p>“Art. 158. This form of government shall be enrolled on parchment, and deposited in the secretary’s office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws of this Commonwealth, in all future editions of such laws.”</p> <p>Ordered: That the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law:</p> <p>Whether the Rearrangement of the Constitution of the Commonwealth submitted by the Constitutional Convention to the people for ratification and adoption at the State election held on the 4th day of November last — and at said election approved and ratified — is the “ Constitution or Form of Government for the Commonwealth of Massachusetts.”</p>