Volume 235 — Massachusetts Reports

<p>Damages, For property taken or damaged under statutory authority. Practice, Civil, Exceptions, Conduct of trial: judge’s charge.</p> <p>At the hearing of a petition for the assessment of damages resulting from the taking of a portion of a farm of the petitioner for the construction of a State highway, it appeared that the land taken had abutted on a dirt road or highway and that the newly constructed State highway was a “cement road,” which, by being more direct, made the distance to a nearby village a thousand feet less. The petitioner asked for a ruling that there was no evidence of any benefit which could be set off in damages against the petitioner. The ruling was refused. Held, that the frontage on a better and more desirable road and the more convenient access to the village were elements of benefit which were direct and special and could be set off in damages against the petitioner, even if all the real estate in the vicinity which abutted on the new highway was benefited similarly.</p> <p>If from a bill of exceptions it appears that a judge in his charge did not give in terms a ruling requested by the excepting party, which was a correct statement of the law and was applicable to the circumstances of the case on trial, and that the party asking for the ruling neither excepted to the failure to give the ruling in terms nor called the judge’s attention to contentions of his that the principle of law stated in the ruling was not made sufficiently clear by the charge and that the ruling should have been given, the record shows no ground for this court to consider such contentions.</p> <p>The use, by a judge in Ms charge at the trial of a petition for damages resulting from a taking of land for the construction of a State Mghway, of the word “ all,” modifying the word “estates” in some passages in a long charge defining what were benefits resulting to estates generally in the neighborhood from the construction of the Mghway, when the charge was read as a whole was held to have been sufficiently accurate.</p> <p>At the trial of the petition above described, the judge submitted five special questions to the jury in an endeavor to determine the damage to the petitioner, the special benefit wMch resulted to Mm from the construction of the Mghway and the benefit wMch resulted to Mm in common with others generally in the neighborhood. One of such questions was as follows: “Did the building and maintenance of the road confer upon the estates in the neighborhood generally a benefit or benefits of a sort'common to them all ? ” Held, that the question was appropriately expressed and that the use of the word “ all ” was not erroneous.</p>

<p>Carrier, Of goods. Negligence, Of carrier of goods. Bill of Lading. Contract, Validity. Evidence, Presumptions and burden of proof.</p> <p>A through bill of lading for a shipment of cotton seed oil from Florida to Maine by water contained provisions that negligence should not be presumed against the carrier and that the carrier should not be liable for loss of the property “by causes beyond its control ... or by leakage. . . .” Held, that the carrier was not liable for the loss of any part of the shipment through leakage unless such loss was caused by the carrier’s negligence, and that the burden of proving such negligence was upon the shipper.</p> <p>Where goods, shipped by water by a through bill of lading, in the course of the shipment are transferred from one carrier to another, any valid limitation of liability contained in the through bill of lading issued by the first carrier enures to the benefit of the second carrier.</p> <p>In an action against carriers who, successively, transported the oil from Florida to Maine under the bill of lading above described for damages resulting from the' loss of a part of the oil by leakage while in transit, there was evidence tending merely to show that the oil, when delivered to the first carrier, was in new, six hoop, white oak, hand-made barrels, well coopered, made of well seasoned timber and thoroughly tested before being used, and that when the shipment arrived at the port of destination it was short in quantity by reason of leakage. Held, that there was no evidence warranting a finding of negligence on the part of either defendant.</p>

<p>Bill in equity, filed in the Superior Court on December 2, 1918, and afterwards amended, by the guardians of Helen Bridge Andrews against Horace Greeley Weston, Mildred White and Sydney B. Larrabee, seeking a recovery of certain personal property of the plaintiffs’ ward alleged to be wrongfully in the possession and control of the defendant Weston and to have declared void deeds of certain real estate by the plaintiffs’ ward to the defendant Larrabee and by him to the ward and the defendant Weston and their survivors, the defendant White having attached the interest of the defendant Weston in an action against him in which she had recovered judgment.</p> <p>By leave of court, the ward, by the plaintiffs as her next friends, was allowed to intervene as a party defendant.</p> <p>In the Superior Court, issue being joined as to all the defendants, the suit was heard by Jenney, J. Material facts found by him are described in the opinion. By his order a final decree was entered, directing the defendant Weston to pay to the plaintiffs $1,895.42 with interest and costs; dismissing the bill without costs as to the defendant Larrabee, declaring the conveyance of the real estate by the plaintiffs’ ward through Larrabee to the ward and Weston and the survivor of them to be null and void; enjoining Weston from asserting any claim thereto and directing him to execute such deed or other conveyance, if any, as might be necessary or appropriate to restore to the plaintiffs’ ward the full record title to the property in question; and enjoining the defendant White “from further proceeding in pursuance of or under any execution hitherto issued in her favor against the defendant Weston in the sale of said real estate as the property of said Weston, and from interfering in any way with the possession of said Helen B. Andrews, or her guardians as aforesaid, in and to said real estate, or from creating any cloud upon the title of said Helen B. Andrews to said premises.”</p> <p>The defendant White alone appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on June 3,. 1919, to enjoin the defendant -from charging for water supplied to domestic consumers in the town of Oak Bluffs a rate higher than that stated in a schedule annexed to an agreement, dated April "9, 1910, between the plaintiff and the defendant, described in the opinion, the plaintiff alleging that that agreement provided that such rates should be maintained.unchanged for twenty" years; and for specific performance of that contract.</p> <p>The preamble and the first paragraph of the contract were as-follows:</p> <p>“This agreement made and concluded this ninth day of April,. "A. D. 1910, by and between the Cottage City Water Company, a corporation organized under the laws of the Commonwealth of' Massachusetts, Chapter 151, Acts of 1890, party of the first part, and the Town of Oak Bluffs (formerly Cottage City) in said Commonwealth, party of the second part, witnesseth, that:</p> <p>"Whereas a certain contract entered into November 25, 1889,. by and between the Town of Cottage City and Wheeler & Parks, assignors tó said Cottage City Water Company, for the construction, operation, and maintenance of a system of water works in said Town, for the extinguishment of fires and for domestic, manufacturing, and other purposes as therein set forth, will expire during the month of June, 1910; and</p> <p>“Whereas the said parties hereto are desirous of fixing the terms and conditions under which public Fire Hydrant service, and water for public uses and purposes shall be furnished and regulated during a further period of twenty (20) years beginning June 15,1910;</p> <p>“Now therefore, in consideration of the agreements, covenants, stipulations and provisions hereinafter set forth, the said party of the first part, the Water Company, hereby agrees with said party of the second part, the Town of Oak Bluffs, as follows, to-wit:</p> <p>“ 1. Term and General Scope of Contract. To maintain in said Town of Oak Bluffs for a further period of twenty (20) years from June 15, 1910, the full and complete system of water works now owned and operated by the Company and to supply water for public uses and for domestic, manufacturing, and other purposes; and to enlarge, extend, and otherwise improve the same from time to time conformably to the growing needs of the service, and as herein further provided.”</p> <p>There were seventeen paragraphs. The second paragraph of the contract related to the source and protection of the purity of the water supply. The third and fourth paragraphs related to the character of the pumping machinery and the maintenance and location of a standpipe or water tower. The fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs related to the hydrant service and its maintenance and the maintenance of proper mains and standpipe. The twelfth paragraph related to the restoration of streets, ways, grounds and property dug up by the company in the conduct of its business. The thirteenth paragraph is quoted in the opinion. The fourteenth paragraph related to the installation of a public drinking fountain and of a faucet at a cemetery. The fifteenth paragraph was a provision for plans to be furnished to the town by the company. The sixteenth paragraph fixed the hydrant rental. The seventeenth paragraph is quoted in the opinion.</p> <p>The defendant demurred to the bill. The demurrer was heard by Braley, J., and by his order an interlocutory decree was entered overruling it, from which the defendant appealed.</p> <p>The suit then was heard by a master. Material facts found by him are stated in the opinion. Both parties filed objections and exceptions to the report, which related solely to rulings as to evidence and findings of fact. The suit came on to be heard by Jenney, J., and by him was reserved for determination by the full court upon the bill, the answer, the demurrer, the master’s report and the objections and exceptions thereto.</p>

<p>Indictment, found and returned in the county of Essex on January 19, 1919, charging that Imbrian Hassan and Suleman Hassan on October 28, 1918, assaulted and beat Alii Hassan with .intent to murder him and by such assault and beating did kill and murder him.</p> <p>In the Superior Court, the defendants were- tried jointly before Callahan, J. The district attorney filed a statement that he would no further prosecute the indictment against either defendant in so far as it charged him with murder in the first degree.</p> <p>At the trial, there was evidence that shortly before the shooting Suleman Hassan had a quarrel with Alii Hassan, who was a brother of the defendant Imbrian, in a coffee house located about fifty yards from the place of the shooting, resulting in Suleman striking him upon the head with a bottle, and that they were separated by other people there.</p> <p>The contention of Suleman Hassan was that the defendant Imbrian Hassan and his brother Alii left the coffee house ahead of him and proceeded to their lodging house near by, where Imbrian took a revolver out of his trunk and with Alii started back toward the coffee house; that Suleman in the meantime had left the coffee house and was standing upon the sidewalk when the two brothers came toward him, Alii being about twenty feet ahead of Imbrian and unarmed; that Alii took hold of Suleman and he (Suleman) grabbed Alii, and, as they were swinging and wrestling around, Imbrian fired at Suleman, but by mistake shot Alii.</p> <p>The contention of the defendant Imbrian was that Suleman was ejected from the coffee house by the proprietor, that later Alii left the place for the purpose of securing the arrest of Suleman for assault; that as he approached Suleman he said, " I am going to the court or police station to have you arrested for what you did;” and that Suleman replied "Do you suppose that I am going to let you go to the police station?” and immediately put his hand in his pocket and pulled out a revolver and shot Alii.</p> <p>There also was evidence that on the day following the shooting, while the defendant Imbrian was in jail, an officer discovered two cartridges hidden in his shoe. ■ At the trial in the Superior Court, the defendant Imbrian offered an explanation of the presence of the cartridges in his shoe. The bill of exceptions states, “The attempt to conceal the cartridges was given much weight in their arguments by the attorney for Suleman and the district attorney.” A part of the argument of the attorney for Suleman was as follows:</p> <p>“They (attorneys for Imbrian) knew where Abraham (Imbrian) put the cartridges, and so, hard put to it, they have evolved a certain scheme. Usually when a case is tried in the lower court or when a complaint is made in the lower court an attempt is made to keep a man from going to jail upon a charge of first degree murder, because if the charge of first degree murder is sustained — that is, if the court finds probable cause to believe that he is guilty — he will be held for action by the grand jury. During the period that he is held, he will not be admitted to bail and usually, if counsel have anything in the way of evidence that is convincing, that can explain away that possible appearance of guilt against the client, they are produced; and we tried this case pretty fully in the lower court. So [counsel for Imbrian] . . . know that they have got to have some explanation of the bullets in the shoe, and I waited with considerable patience to find out what it was going to be, and the answer came when the opening for the defendant was made. . . . That was that a young outlaw from the West, a nephew (Kako) of Abraham (Imbrian) Hassan’s, had come on here to your peaceful community, and had brought with him the gun for business, if necessary, and the blackjack for pleasure was his testimony.” Counsel for the defendant Imbrian did not interrupt the attorney for Suleman during this argument and made no objection to the line of argument during the argument or at the close thereof. The district attorney in his argument made no comment on the failure of the defendant Imbrian to offer an explanation of the presence of the cartridges before the trial.</p> <p>Other evidence and the circumstances under which the defendant Imbrian Hassan presented to the judge certain requests for instructions are described in the opinion.</p> <p>In the course of the charge, the judge instructed the jury as follows:</p> <p>“Now if Suleman fired the fatal shot, you need give no heed to what I am about to say. It is the theory of Suleman that Imbrian with the revolver in his hand, observing a struggle between Suleman and Alii, the latter of whom was hit upon the head by a bottle by Suleman some time before, determined to kill Suleman, fired, and by accident slew his own brother Alii.</p> <p>“What is the legal status of the perpetrator of a homicide in such circumstances? The law’s solicitude for human life is so great that if one man slay another by accident while he is unlawfully slaying or attempting to slay a third, the intent with which he acts against his intended victim is transferred to and made a part of the accidental act and he is held guilty in the same degree as he would have been held if his purpose against his intended victim had been accomplished.</p> <p>“So here, if you should find that Alii was in fact killed by Imbrian by accident while he, Imbrian, was attempting to kill Suleman, it would be your duty to find him guilty of murder as charged in this indictment, or of manslaughter, — of murder if there was malice aforethought in the act, of manslaughter if the homicide was committed in the course of a combat or under great and sudden provocation.”</p> <p>The jury found the defendant Suleman Hassan not guilty, and found the defendant Imbrian Hassan guilty of manslaughter; and the defendant Imbrian Hassan alleged exceptions.</p> <p>St. 1912, c. 325, is as follows: “At the trial of a criminal case in the Superior Court, upon indictment or appeal, the fact that the defendant did not testify at the preliminary hearing or trial in the lower court, or that at such hearing or trial he waived examination or did not offer any evidence in his own defence, shall not be used as evidence against him, nor be referred to or commented upon by the district attorney or other prosecuting officer.”</p>

<p>Probate Court, Appeal. Words, “Person who is aggrieved.”</p> <p>A creditor of a deceased person is not a “person who is aggrieved” by a decree of the Probate Court allowing a will of his debtor and is not given by R. L. c. 162, § 9, a right of appeal therefrom.</p> <p>Whether under any circumstances a creditor of a deceased person would have a right of appeal from a decree of the Probate Court upon a petition under R. L. c. 137, § 1, cl. 3, giving “one or more of the principal creditors” of a deceased person a right to petition for administration of his estate, was not determined.</p>

<p>Equity Pleading and Practice, Appeal, Amendment, Decree nunc pro tune. Superior Court. Evidence, Presumptions and burden of proof, Of fraud. Equity Jurisdiction, To reach and apply property conveyed in fraud of creditors.</p> <p>After an appeal from a final decree of the Superior Court in a suit in equity had been entered in this court, it was, on motion before argument, discharged and, in the Superior Court, a motion was allowed, as of a date preceding, the entry of the final decree, amending the bill so that the findings of the trial judge and the final decree conformed to the allegations of the bill as amended in a particular which had been fully tried when the suit was heard upon the merits. Held, that the Superior Court had no power to allow such an amendment.</p> <p>Upon the return to this court of tire record in the suit above described with the action of the judge of the Superior Court and the amendment appended thereto, it was held that the case must be considered only upon the record as presented by the original appeal from the final decree.</p> <p>When a suit in equity comes before this court upon an appeal from a final decree with a report of the evidence, the powers of this court for the accomplishment of justice are extensive and include power to order or to authorize amendments to pleadings. . By Rtjgg, C. J.</p> <p>An appeal from a final decree of the Superior Court in a suit in equity, where the evidence was in part oral and was taken and reported by a commissioner appointed under Equity Rule 35, brings both questions of fact and questions of law for revision to this court, who must examine the evidence and decide the case according to their own judgment, giving due weight to findings of the trial judge, whose decision, based upon the hearing of oral testimony, will not be reversed unless plainly wrong.</p> <p>At the hearing of a suit in equity to reach and apply in payment of a judgment debt securities of the judgment debtor alleged to have been placed by him, in fraud of his creditors, in the hands of a second defendant, both defendants testified orally. There was evidence tending to show that during a period of about four years seven different certificates for an aggregate of two hundred and seventy-five shares of the preferred stock of a certain corporation had been issued to the second defendant, that two hundred of these shares were transferred through several intermediaries to the judgment debtor, leaving seventy-five shares in the name of the second defendant; that during this time the judgment debtor was entangled in much litigation which ultimately might involve him in considerable financial liability, part of which concerned proceedings instituted by his wife, and that some securities, other than those above described, had been conveyed by the judgment debtor to the second defendant in alleged payment of a note which might have been found not to represent genuine indebtedness. The trial judge found that the seventy-five shares of preferred stock remaining in the name of the second defendant were the property of the judgment debtor and were issued to the second defendant under an agreement or understanding between him and the judgment debtor, with the purpose of concealing the true ownership through a secret trust and in fraud of creditors, and that the shares were held by the second defendant without consideration.Upon an appeal from a final decree for the plaintiff, the entire evidence being reported, it was held,, that the judge’s finding could not be said to be plainly wrong.</p> <p>It is not necessary, in order to maintain a suit in equity to reach and apply, in payment of a debt owed to the plaintiff, property of the debtor conveyed by him in fraud of his creditors, that the plaintiff should have been a creditor at the time of the fraudulent conveyance.</p> <p>Allegations in a bill in equity in the Superior Court to reach and apply, in payment of a judgment debt, property conveyed by the judgment debtor to others in fraud of his creditors, were that the judgment debtor owned two-hundred and eleven shares of stock in a certain corporation, “evidenced by certain certificates, among which are certificates numbered . . . [[giving the numbers] ... or by certificates which have been issued in the place of said certificates,” which stock was bought in the name of a second defendant under an agreement in fraud of the debtor’s creditors, that the second defendant “now holds a part of said stock under said agreement,” and that other defendants severally held other parts “of said stock” under like agreements. At the trial, the second defendant was inquired of as to seventy-five shares of stock of the corporation in question, which were represented by certificates in his name but bearing numbers other .than those stated in the bill and express notice was given that the plaintiff contended that those seventy-five shares belonged to the judgment debtor. No objection was made to the examination nor was any suggestion made that the defendant during the trial had no sufficient opportunity to produce evidence to controvert the plaintiff’s contention. A decree was made, upon findings warranted by the evidence, that the seventy-five shares might be reached and applied to satisfy the judgment debt. Upon an appeal from the final decree, it was held that a motion should be allowed in the Superior Court to amend the bill to include the particular certificates described in the final decree and that, upon such amendment being allowed, the decree should be affirmed.</p>

<p>Mortgage, Consideration. Bona Fide Purchaser. Conversion.</p> <p>A mortgage of goods, given to secure the payment of a note which bore the same date as the mortgage and which was delivered to the mortgagee upon his surrendering several overdue and unpaid notes previously given to him by the mortgagor for sums of money lent by the mortgagee on the dates of the several notes, is supported by a valuable consideration.</p> <p>One, who in good faith and without notice of any fraud on the part of the mortgagor received a mortgage of goods, which was given to him upon his surrendering overdue and unpaid notes previously given to him by the mortgagor for sums lent from time to time before the giving of the mortgage, may maintain an action of tort for conversion of the goods against a sheriff whose deputy had seized and, after a demand by him, had retained the goods upon a writ of replevin brought against the mortgagor by one who had sold the goods to the mortgagor and had rescinded the sale by reason of the mortgagor's fraud.</p>

<p>Practice, Civil, Exceptions, Conduct of trial: judge’s charge.</p> <p>In the bill of exceptions saved by the plaintiff at the trial of an action for personal injuries caused by slipping on ice alleged to have accumulated, by reason of the defendant’s negligence, upon land of the defendant adjacent to the approach to a post office which occupied under a lease a portion of a building of the defendant, it appeared that there was no provision in the lease affecting responsibility for keeping in proper condition the place where the plaintiff was injured. The bill of exceptions quoted several requests by the plaintiff for instructions to be given to the jury, which were followed by the statement, "The court, in the matters touched by these requests, instructed the jury as follows: ...” after which was set out in four pages of the printed record what appeared to be quotations from the charge to the jury covering every aspect of the defendant’s legal duty and his alleged failure to perform that duty. The plaintiff’s exceptions were saved in these words: “By the refusal of the court to give the instructions asked for, and by the aforesaid instructions given, the plaintiff has been aggrieved, and she hereby excepts to the refusal of the court to give said instructions and to said instructions given.” At the argument of the exceptions in this court, the plaintiff waived exceptions to refusals to instruct the jury as requested and relied only on an alleged erroneous instruction contained in a single paragraph of the charge. It did not appear that the alleged error was called to the attention of the trial judge at the close of the charge. In considering the exception, it was stated that it was doubtful whether any exception was open to the plaintiff under the circumstances.</p> <p>The portion of the charge which the plaintiff, under the circumstances above described, contended was erroneous, followed a paragraph in which the judge had " pointed out that, in order for the defendant to be liable, the jury must find that the plaintiff had been invited upon the premises by the defendant, the judge repeating, with emphasis, that the invitation must be by the defendant. The alleged erroneous instruction was as follows: “Other people could invite this lady upon the premises if they had seen fit, — although the person that invited her was the person that undertook to see that it was safe. It may be that you think there is a difference between the doctor [the defendant] and the plaintiff in that matter. The United States government may have been the person that invited the plaintiff on these premises. If it was, then it was the United States government that undertook the duty of seeing that they were reasonably safe, no matter to whom they belonged, if it invited her to use them.” Following this instruction, the judge reviewed the evidence bearing upon the question whether the defendant had invited the plaintiff to go upon the premises. Held, that the portion of the charge alleged to be erroneous was not open to objection, and that no substantial error in the charge resulting in a mistrial was shown.</p>

<p>Tort by the administrator of the estate of Mary Trzybinska, the declaration alleging that the defendant negligently ran into the plaintiff’s intestate and caused her death. Writ dated August 31, 1917.</p> <p>In the Superior Court the action was tried before Hammond, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict for him be ordered. The motion was denied. There was a verdict for the plaintiff in the sum of $500.</p> <p>The bill of exceptions recites: “Before the jury was. dismissed, and when the verdict was affirmed and recorded, the judge reserved leave with the consent of the jury under the provisions of St. 1915, c. 185, to enter a verdict for the defendant in case it should be decided either by this court or by the Supreme Judicial Court that such a verdict ought to have been so entered. The der fendant then filed a motion that a verdict and judgment for the defendant be entered in accordance with the reservation of the court at the trial. This motion was later argued by counsel for both parties. The court allowed the defendant’s motion to enter a verdict for the defendant in accordance with the reservation at the trial, but denied the defendant’s motion that judgment be entered.” The plaintiff alleged exceptions.</p> <p>St. 1915, c. 185, is as follows:</p> <p>“Section 1. Chapter one hundred and seventy-three of the Revised Laws is hereby amended by striking out section one hundred and twenty and inserting in place thereof the following: Section 120. When exceptions to any ruling or direction of a judge shall be alleged, or any question of law shall be reserved, in the course of a trial by jury, and the circumstances shall be such that, if the ruling or direction at the trial was wrong, the verdict or finding ought to have been entered for a different party or for larger or smaller damages or otherwise than as was done at the trial, the judge may reserve leave, with the assent of the jury, so to enter the verdict or finding, if upon the question or questions of law so raised the court shall decide that it ought to have been so entered. The leave reserved, as well as the findings of the jury upon any particular questions of fact that may have been submitted to them, shall be entered in the record of the proceedings, and if upon the question or questions of law it shall be decided, either by the same court or by the appellate court, that the verdict or finding ought to have been entered in accordance with the leave reserved, it shall be entered accordingly and, when so entered, it shall have the same effect as if it had been entered at the trial.</p> <p>“Section 2. Nothing herein contained shall be so construed as to limit the powers of the court conferred by chapter two hundred and thirty-six of the acts of the year nineteen hundred and nine or by chapter seven hundred and sixteen of the acts of the year nineteen hundred and thirteen.”</p> <p>A material portion of St. 1913, c. 716, § 2, is as follows: “Whenever a question in dispute at the trial of an issue of fact in any civil action or proceeding depends upon the decision of a question of law, the full bench of the Supreme Judicial Court, upon appeal, exceptions or report or otherwise, may, if satisfied that it has before it all the facts necessary for determining the question in dispute, direct that such judgment or decree be entered or that such other action be taken as shall accord with the determination of the full court.”</p> <p>The case was submitted on briefs.</p>

Petition, filed in the Land Court on January 2, 1919, for the registration of the title to certain land on Clifton Street in Cambridge. In the Land Court the case was referred to a master. In his report he stated: “The only doubtful thing about the validity of these [tax] titles [of 1908 and 1909] ... is the descriptions in the . . . deeds.” There were no objections or exceptions to his report.

<p>Municipal Court of the City of Boston, Report to Appellate Division. Contract, What constitutes, Implied. Evidence, Presumptions and burden of proof.</p> <p>No appeal lies from a denial by the Appellate Division of the Municipal Court of the City of Boston of a petition to establish the truth of a report, which, upon its presentation for allowance to the trial judge of the court, had been disallowed by him.</p> <p>In an action upon an account annexed for a balance alleged to be due for furniture sold to the defendant and delivered to his daughter, the burden of proof is upon the plaintiff to prove by a fair preponderance of the evidence that the goods were sold to the defendant.</p> <p>The circumstances, in the action above described, that the father made payments of considerable amounts upon the purchase price of a number of items of furniture for the home of his married daughter and that a few chairs included in the items in the account annexed to the declaration were delivered at his place of business, although important as evidence were held not as a matter of law to be decisive in fixing liability upon the father.</p> <p>At the trial of the action above described, the judge excluded evidence tending to show that the defendant suggested to the plaintiff that efforts be made to collect the bill for the furniture from the daughter’s husband. Held, that the exclusion was proper.</p>

<p>Witness, Expert. Evidence, Opinion: expert. Practice, Civil, Discretionary power of trial judge as to expert testimony, Exceptions.</p> <p>It is within the discretionary power of a trial judge to exclude a hypothetical question asked of an expert witness if in the question facts are assumed which are not yet in evidence.</p> <p>An expert medical witness called by the plaintiff at the trial of an action of tort was asked in cross-examination a hypothetical question, based upon an assumption of facts of which no evidence yet had been introduced. The question was excluded and the defendant excepted. In redirect and in recross-examination there was extensive inquiry on the same subject matter and the defendant was permitted to ask questions which in substance sought the same information as that which previously had been excluded in cross-examination. Held, that the exceptions must be overruled, both because it was a proper exercise of discretion to exclude hypothetical questions based on facts of which there was not as yet any evidence, and because, owing to the redirect and recross-examination, the defendant was not harmed by the exclusion.</p>

<p>Tort, with a declaration in two counts, by the administrator of the estate of Jennie Roosen for causing her death, it being alleged in the first count that the death was caused by the acts, described in the opinion, of incompetent persons negligently employed by the defendant, and the second count containing allegations that the death was caused by “the combined negligence of certain persons in” the defendant’s “pharmacy department” and of the nurse attending the plaintiff’s intestate. Writ dated March 21, 1919; also an action of</p> <p>Tort or contract, with a declaration as amended in five counts, by the same plaintiff for the conscious suffering of the plaintiff’s intestate, preceding her death, the allegations in the counts as to the cause of the conscious suffering being as follows: in the first count, a failure of the defendant to fulfil contract obligations undertaken by it to give to the plaintiff’s intestate careful and proper care and treatment; in the second, fourth and fifth counts, negligence of the defendant and of its governing board and officers in employing incompetent persons, whose incompetence and negligence caused the suffering of the plaintiff’s intestate; in the third count, negligence of the nurse who was in attendance upon the plaintiff’s intestate.</p> <p>The defendant demurred to the declaration in each case. The demurrers were heard by Wait, J., and were sustained. Judgments for the defendant were entered; and the plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on March 31,1919, to enjoin the defendant, whose property, numbered 1351 on Beacon Street in Brookline, the plaintiff was occupying under a lease from the defendant, from interfering with the plaintiff’s occupancy and quiet enjoyment of the premises.</p> <p>In the Superior Court the case was heard by Fox, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. The judge made the following finding and ruling: “The plaintiff had generally been slow in the payment of his rent, and had been warned by the landlord’s agent that unless he paid more promptly he would have to vacate the premises. At the time of the entry, the rent for,two months was in arrears. It does not seem to be a case for equitable relief. The bill is to be dismissed with costs.”</p> <p>A decree dismissing the bill was entered in accordance with the foregoing order; and the plaintiff appealed.</p>

<p>Four actions of contract by the payee of two promissory notes dated August 25, 1914, against Henry Gerrish, Jr., the maker, and Arthur W. Burke, an indorser, for instalments alleged to be due thereon. Writs dated, respectively, December 13, 1916, March 2 and September 11, 1917, and May 29, 1918; also an action of</p> <p>Tort or contract by Arthur W. Burke against Nathaniel P. Beaman, with a declaration in three counts, the allegations of the first count being that the plaintiff was induced by fraudulent misrepresentations of the defendant, the treasurer of the Parsons Manufacturing Company, to purchase from him on June 3, 1914, fifty shares of the preferred stock of that corporation, the fraudulent representations being statements relating to the amount of business and the financial condition of the corporation, and that “the said shares of stock had been validly issued in accordance with the laws of the Commonwealth of Massachusetts and were fully paid for.” The plaintiff in the second count alleged a failure of consideration for such sale, whereby the price paid by the plaintiff for the stock, $5,000, became due to the plaintiff, and the third count was for money had and received by the defendant to the plaintiff’s use. Writ dated March 30, 1917.</p> <p>The five actions were tried together before Fessenden, J. The material evidence is described in the opinion. The expert witness, referred to in the fourth numbered paragraph of the opinion, was a certified public accountant. At the close of the evidence Burke asked that the following among other instructions be given to the jury in all the actions:</p> <p>“9. If the preferred stock of the Parsons Manufacturing Company was issued to the defendant without any consideration passing from the defendant to the corporation, the stock was not fully paid stock and was illegally issued.</p> <p>“ 10. Though there was credited to the defendant on the books of the Parsons Manufacturing Company from time to time certain sums of money as a debt of the said corporation to the defendant without a vote of the Directors or of the stockholders declaring a dividend on the stock of the said corporation, the pretended debt of the corporation to the defendant did not exist and stock later issued to the defendant in consideration only of a cancellation of the said pretended debt was issued without consideration and in violation of law.</p> <p>"11. If the defendant and one Gerrish as shareholders and directors of the Parsons Manufacturing Company had been in the habit of dividing between them the net profits of the business conducted by the said corporation without any vote declaring a dividend on its stock, whatever might have been the rights of the defendant to retain money so withdrawn, a mere book entry transferring money to the credit of the defendant would not create a legal indebtedness of the corporation to the plaintiff but the money remained undivided profits belonging to and in the possession of the corporation.”</p> <p>Burke also asked that the following instructions be given to the jury in his action against Beaman:</p> <p>" 24. If the plaintiff bought from the defendant stock in the Parsons Manufacturing Company in reliance upon false representations of fact contained in a Certificate of Condition of the Parsons Manufacturing Company signed and sworn to by the defendant and filed with the Commissioner of Corporations, the plaintiff is entitled to recover from the defendant in this action.</p> <p>“25. On all the evidence the Parsons Manufacturing Company was not indebted to the defendant in 1909 in the sum of $20,000 and the preferred stock issued to him at that time did not become fully paid stock as a result of a cancellation of the said supposed indebtedness to the defendant.”</p> <p>Burke further asked that the following instructions be given to the jury in all the actions against him:</p> <p>“23. If the defendant Burke indorsed the notes in suit in reliance upon false representations of fact in a Certificate of Condition of the Parsons Manufacturing Company, signed and sworn to by the plaintiff and filed with the Commissioner of Corporations, the plaintiff cannot recover against the defendant Burke.</p> <p>“ 24. On all the evidence the Parsons Manufacturing Company was not indebted to the plaintiff in 1909 in the sum of $20,000, and the preferred stock issued to him at that time did not become fully paid stock as a result of a cancellation of the said supposed indebtedness to the plaintiff.”</p> <p>Burke also asked that the following instructions be given to the jury in the actions for instalments alleged to be due on the notes in suit previous to their final due date:</p> <p>“A. The provision in the note in suit ‘payable after two years at the rate of $500 quarterly’ means as a matter of law that the maker or indorser had the right if he chose to make payments on account before it fell due, but does not impose on them an obligation to pay before the expiration of the number of years named at the beginning of the instrument as the date when the money should be paid.</p> <p>“B. The first part of the note in suit is a complete promise to pay a specified number of dollars on a specified date and standing by itself would be a complete negotiable instrument and the subsequent provision ‘payable after one year at the rate of $500 quarterly’ should be interpreted in harmony with the rest of the note and not in contradiction to it.</p> <p>“C. Without a provision in a note giving the maker an option to pay in instalments before maturity, the maker would have no right to make such payments in advance and would be liable for interest on the whole amount of the note until maturity.</p> <p>“D. On all the evidence this action was prematurely brought.</p> <p>“E. On all the evidence the provision in the note in suit ‘ payable after two years at the rate of $500 quarterly’ meant that the maker and indorser had an option to pay before it fell due but not that they were bound to make any payment before the expiration of the number of years named in the earlier part of the note as the date when it must be paid.</p> <p>“F. If you find that the defendant Gerrish by inserting in the note in suit the provision that it was payable after a specified number of years at the rate of $500 quarterly so that he could if he chose make the payments in instalments in advance of the time when he had to pay the whole of it in accordance with the earlier provisions of the note and the plaintiff understood that it was put in there for that purpose then you must find for the defendant Burke because this action was brought before any money was due the plaintiff on the note in suit.”</p> <p>All of the foregoing requests for instructions were refused by the judge.</p> <p>The judge directed Burke to elect between the counts in the action in which he was plaintiff, and he elected to go to the jury on the first count only.</p> <p>The judge submitted in each action a special question to the jury, which, with the jury’s answer thereto, was in substance as follows:</p> <p>"Did . . . Beaman and Henry Gerrish, Jr., conspire and confederate together to deceive and defraud Burke in the manner set forth by Burke in his declaration?” The jury answered “No.”</p> <p>The jury found for the plaintiff in the first four actions, the verdict in the first action being $631.25; in the second action, $631.25; in the third action, $1,262.50, and in the fourth action, $1,893.75. In the fifth action the finding was for the defendant. Burke alleged exceptions in all the actions.</p>

<p>Tax, On income. Sale. Purchase. Corporation, Reorganization. Words, “Sales,” “Purchases.” .</p> <p>If the directors of a business corporation, incorporated under the laws of the State of Maine and having a usual place of business in this Commonwealth, which has outstanding both preferred and common stock, cause to be organized under the laws of the State of Maine another corporation, issuing common stock only, and all of the stockholders, both preferred and common, of the original corporation exchange their shares for shares of stock of the new corporation, after which the original corporation transfers all its property to the new corporation, which continues the business as before; and if an inhabitant of this Commonwealth, who owned shares of the preferred and of the common stock of the original corporation, exchanged them for shares of stock of the new corporation, which were of greater value, such transaction is a sale of the shares in the original, and a purchase of the shares in the new corporation and the gain resulting therefrom is subject to a tax under St. 1916, c. 269, § 5 (c).</p>

<p>Tax, On income. Sole. Purchase. Corporation.</p> <p>In February, 1917, an inhabitant of this Commonwealth exchanged shares of the common stock of a corporation organized in the State of New Jersey, of the par value of $100, for four times as many shares of the common stock of a corporation organized in the State of New York, which had acquired all of the assets of the New Jersey corporation and had no other property and issued its stock, without par value, almost entirely in exchange for the stock of the New Jersey corporation. No gain resulted from this exchange. In October, 1917, the same shareholder accepted an offer made by the directors of the New York corporation to exchange his shares therein, share for share, for shares in another New York corporation, of a much larger capitalization, which was organized to acquire the common stock of four corporations engaged in the manufacturing of products which could be conducted more economically under a single management and issued substantially all of its capital stock for that purpose. By the last exchange the shareholder acquired shares worth more than those he gave. Held, that such exchanges were sales and purchases of intangible personal property under St. 1916, c. 269, § 5 (c), and that the gain resulting therefrom was subject to the income tax imposed by that statute. Following Osgood v. Tax Commissioner, ante, 88.</p>

<p>Motor Vehicle, License to operate for hire. Carrier, Of passengers. Constitutional Law, Police power. Municipal Corporations, By-laws and ordinances, Power to license and to revoke license. License. Street Railway. Monopoly.</p> <p>St. 1916, c. 293, § 1, empowering such cities and towns as should accept its provisions “to license and regulate the transportation of passengers for hire as a business between fixed and regular termini by means of any motor vehicle,,r with certain exceptions, was a valid exercise of the police power and was-constitutional.</p> <p>Where the rights given to one who has been granted a license to conduct a certain business are dependent wholly upon the terms of a statute or an ordinance, and such statute or ordinance contains a provision for revocation of the license but, neither expressly nor by fair implication, any requirement that, before such revocation, the licensee shall be entitled to a notice or to a hearing, the rights under the license may be cut off by a revocation without a notice or a hearing.</p> <p>An ordinance, enacted, before the enactment of St. 1919, c. 371, by the city of Brockton, which had accepted the provisions of St. 1916, c. 293, provided that the licensing authorities might suspend or revoke any license granted for the use of a motor vehicle for hire “for violation of any law of the Commonwealth made in relation to the operation of motor vehicles, or violation of any traffic ordinance of said City ... or violation of any of the rules, restrictions, requirements or regulations herein prescribed or for any other cause deemed by said licensing authorities in the exercise of reasonable discretion to be sufficient.” Licenses were granted under the provisions of the ordinance and the licensees made investments for the conduct of their business in reliance upon a continuance of their licenses. Thereafter the public trustees operating the Eastern Massachusetts Street Railway Company notified the mayor and aldermen that they proposed to discontinue certain street car lines in the city because of insufficient returns due to unfair competition by licensees under the ordinance. After public meetings and careful consideration and acting in good faith and in the exercise of a reasonable discretion, the mayor and aldermen revoked the licenses for the general convenience of the public. Held, that</p> <p>(1) A license granted under the provisions of the ordinance might be revoked without the licensee being given notice or a hearing;</p> <p>(2) The provisions of the ordinance above quoted were within the scope of the authorization of the statute;</p> <p>(3) While the power to revoke a license given by the ordinance was not a power to revoke arbitrarily or irrationally, revocation under the circumstances above described was reasonable and valid;</p> <p>(4) The fact that the licensees had made investments for the conduct of their business in reliance upon a continuance of their business made their licenses no less revocable under the provisions of the ordinance.</p> <p>The power, given by the provisions of St. 1916, c. 293, § 1, before the enactment of St. 1919, c. 371, to such cities and towns as should accept its provisions, "to license and regulate the transportation of passengers for hire as a business between fixed and regular termini by means of any motor vehicle, [with certain exceptions,]” imposes no obligation upon such municipalities to grant any licenses.</p> <p>Neither the provisions of the ordinance above described nor the action of the licensing authorities in revoking the licenses granted thereunder in order that the service of the public by the trustees of the street railway company might not be discontinued contravened the principles of the common law or of the statute relating to monopolies.</p>

Contract, with a declaration, as amended, in two counts, the plaintiff alleging in the first count that one I. Cohen, doing business under the firm name and style of Supreme Skirt Company, assigned to him in writing certain accounts receivable, in number thirty-six, and that thereafter the defendant collected the accounts and retained the proceeds thereof, refusing to pay them to the plaintiff.

Contract upon a recognizance given in a poor debtor proceeding by Eugene L. MacDonald as principal and John Francis Hughes as surety. Writ in the Municipal Court of the City of Boston dated September 21, 1918. The material evidence at the trial in the Municipal Court is described in the opinion. At the close of the evidence, the plaintiff asked for the following rulings: “1. That upon all the evidence the plaintiff is entitled to recover. “2.

<p>Bill in equity, filed in the Superior Court on July 19, 1919, and afterwards amended, by the selectmen of the town of Lexington, constituted its board of survey by the acceptance by the town of St. 1907, c. 191, seeking to enjoin the defendant, a corporation engaged in the business of purchasing, developing and selling real estate, “from removing, destroying, defacing, burning, or otherwise injuring or interfering with in any way” a sign, described below, erected by the plaintiff board of survey at the inside edge of the curb line of the street bordering on land owned by the defendant. Further prayers of the bill were that the plaintiffs “be allowed to maintain said sign or a sign similar in nature, purpose and location, on or near or in the immediate vicinity of” the defendant’s land; that the defendant “be forthwith ordered to return” other signs of a similar character, which had been erected by the plaintiffs and torn down and removed by the defendant, or, in case those signs had been destroyed, to pay to the plaintiffs the -value thereof and all expenses incurred in their erection and maintenance “and all the loss or damage accruing from the absence of said signs;” also a Bill in equity, filed in the Superior Court on October 31,1919, by the same plaintiffs, seeking, upon the allegations described in the opinion, to enjoin the defendant from the construction or further construction upon its land of ways, and of sewers, drains, water pipes or street lamps in and upon ways already constructed or under construction, until the defendant “has submitted suitable plans as provided in” St. 1907, c. 191, “and until such plans are approved by the Board of Survey.”</p> <p>The sign described in the first suit was approximately four feet square, the top of it being eight feet from the ground. The notice thereon bore the signatures of the plaintiff board of survey, and was as follows:</p> <p>“Warning.</p> <p>To Purchasers of Land in Lexington.</p> <p>“ No road will be accepted or made a public street in Lexington nor will any water mains, street lamps, sewer or other public utilities be provided therein nor will any such street or private way be approved by the Board of Survey until such streets shall have been laid out to a width of not less than Fifty (50) feet and to a grade satisfactory to said Board.</p> <p>“ Chapter 191 of the Acts of 1907 has been accepted by the Town of Lexington and its provisions will be rigidly applied to all Real Estate Developments in the Town.”</p> <p>The defendant demurred to each bill for want of equity. The demurrers came on to be heard by Lawton, J., who reserved and reported the suits upon the bills and demurrers for determination by this court, it being stipulated in each suit that the bill was to be dismissed if the demurrer should be sustained; and, if the demurrer should be overruled, that such decree was to be entered as justice and equity required.</p>

<p>Writ of review, issued from the Municipal Court of the City of Boston on May 16, 1917, to review a judgment of $79.20, damages, and $16.78, costs, entered in that court on January 26, 1917.</p> <p>In the Municipal Court the judge found for the plaintiff in review and, at the request of the defendant in review, reported the case to the Appellate Division, who discharged the report "for want of jurisdiction.” The defendant in review appealed.</p>

<p>Way, Public: want of railing. Motor Vehicle.</p> <p>In an action against a town under St. 1917, c. 344, Part IV, § 24, for personal injuries alleged to have been sustained by reason of a want of a sufficient railing upon a way approaching a bridge over a river, there was evidence tending to show that in November, 1918, at the time of the accident, the plaintiff was driving in a motor car of the type known as a “ Ford touring car” upon an asphalt road; that he was on the right hand side of the road, which, after turning sharply to the left, proceeded one hundred feet to the bridge; that, after he had made the turn and when he was proceeding at the rate of about twelve or fifteen miles an hour with the left hand wheels of the motor car on the asphalt of the road, which there was narrow, the right hand wheels, at a distance of about twenty-five feet from the bridge, ran into sand and loose material which caused the car to swerve suddenly to the left; that he at once threw out the clutch and applied the brakes but was unable to stop the car within thirty or forty feet, so that it ran over the embankment into a river. Held, that</p> <p>(1) There was evidence warranting a finding that a want of a sufficient railing upon the highway caused the injury to the plaintiff;</p> <p>(2) It could not be said as a matter of law that the plaintiff’s loss of control of the motor car was more than momentary.</p> <p>Although a municipality is not required to erect, between a highway and an embankment bordering a river, a railing of sufficient strength to protect a motor vehicle of great weight, as compared to a horse-drawn vehicle, from going over the embankment, it seems that a railing might be found to be sufficient to insure the safety of ordinary travel and therefore sufficient to prevent the municipality . from being liable under St. 1917, c. 344, Part IV, § 24, for injury or damage caused by want of a sufficient railing, if it was of a character to prevent a motor car of the type known in November, 1918, as a “Ford touring car” from running over the embankment where, when going at the rate of from twelve to fifteen miles an hour, the car had swerved and, with its clutch thrown out and its brakes set, had crossed the road to the embankment.</p>

<p>Two actions of tort, the first action being for personal injuries received when the plaintiff was riding in a motor car, which was owned and operated by her husband, the plaintiff in the second action, and was run into by the defendant; and the second action being for damages to the motor car and for consequential damages resulting from the injuries received by the plaintiff in the first action. Writs dated respectively June 22 and July 5, 1917.</p> <p>In the Superior Court, the actions were tried together before McLaughlin, J. The material evidence, certain rulings of the judge which were excepted to by the plaintiffs, and a special finding by the jury are described in the opinion. There was a verdict for the defendant in each action; and the plaintiffs alleged exceptions.</p> <p>Material portions of St. 1909, c. 534, § 2, as amended by St. 1912, •c. 400, § 1, read as follows: “Application for the registration of motor vehicles may be made by the owner thereof, by mail or otherwise, to the Massachusetts highway commission or any agent thereof designated for that purpose, upon blanks prepared under its authority. The application shall contain, in addition to such other particulars as may be required by the commission, a statement of the name, place of residence and address of the applicant, with a brief description of the motor vehicle, including the name of the maker, the number, if any, affixed by the maker, the character of the motor power and the amount of such motor power stated in figures of horse power; and with such application shall be deposited the proper registration fee as provided in section twenty-nine. The commission or its duly authorized agent shall then register in a book or upon suitable index cards to be kept for the purpose the motor vehicle described in the application, giving to said vehicle a distinguishing number or other mark to be known as the register number for that vehicle, and shall thereupon issue to the applicant a certificate of registration. The certificate shall contain the name, place of residence and address of the applicant and the register number or mark, and shall be in such form and contain such further information as the commission may determine. ...”</p> <p>The cases were argued at the bar for the defendant in November, 1919, before Rugg, C. J., Braley, De Carney, Pierce, & Jenney, JJ., and afterwards were submitted on briefs to all the Justices.</p>

<p>Landlord and Tenant, Liability of landlord to member of tenant’s family. Negligence, Of one in control of real estate. Evidence, Competency.</p> <p>The landlord of an apartment house is not liable to a child of a tenant for personal injuries caused by his falling through a defective gate into an unused dumbwaiter well around which was built a stairway used in common by the tenants of the house, if it appears that the defect in the gate existed when the tenancy began and that its existence was not known to the landlord. De Cornier, J., dissenting.</p> <p>In an action by the child, who received injuries as described above, against the landlord, evidence of regulations of the board of elevator regulations, which specifically provided that they did not relate to dumb-waiters, were held improperly to have been admitted in evidence.</p>

<p>Contract upon an account annexed containing three items entitled "money had and received,” amounting to $3,400, and one item of interest amounting to $71.36. Writ dated May 2, 1918.</p> <p>In the Superior Court, the case was referred to an auditor. Material findings of the auditor are described in the opinion. The last sentence in the report was as follows: “ I find, if it is matter of fact, and ride, if it is mátter of law, that upon all the evidence the defendants owe the plaintiff nothing.”</p> <p>After the filing of the auditor’s report, the plaintiff moved under Rule 31 of the Superior Court (1915) for entry of judgment according to the report. By agreement of the parties the motion was heard solely on the auditor’s report by Wait, J., who ordered judgment for the defendants upon the motion and reported the case for determination by this court, it being agreed that judgment should be entered for the plaintiff in the sum of $3,471.36 and interest if, upon the facts as found by the auditor and set forth in his report, judgment should not have been ordered for the defendants but should have been ordered for the plaintiff; otherwise, that judgment should be entered for the defendants.</p> <p>Material portions of Rule 31 of the Superior Court-(1915) are as follows: “On the coming in of the auditor’s report, either party may move for entry of judgment according to said report; and the cotut, thereupon, shall order such judgment to be entered, unless, within a time stated, cause appears or is shown to the contrary. If cause appears or is shown, the court may hear the parties and frame appropriate issues for the court or jury, upon which the trial shall be had.”</p>

<p>Tort, with a declaration as amended in thirteen counts, for the negligent causing of the conscious suffering and death of Thomas Cullity on October 20, 1911, when he was employed by the defendants, doing business under the firm name and style, C. F. Hovey and Company. Writ dated March 8, 1912.</p> <p>In the Superior Court the action was tried before Hall, J. The material evidence is described in the opinion. At the close of the plaintiff's evidence, the defendants rested and the judge ordered a verdict for them and, at the request of the parties, reported the case to this court for determination, it being stipulated that, if the order for the verdict was right, judgment was to be entered thereon, but if, upon all the evidence which was properly admissible and ought to have been submitted to the jury, the case ought to have gone to the jury, judgment was to be entered for the plaintiff in the sum of $1,000. -</p> <p>R. L. c. 104, § 27, is as follows: “Elevator cabs or cars, whether used for freight or passengers, shall be provided with a suitable mechanical device by which they will be securely held in the event of an accident to the shipper rope or hoisting machinery, or any similar accident, and they shall be guarded and equipped with some attachment or device fastened to the elevator cab or car, elevator well, or floor of the building, which shall prevent any person from being caught between the floor of the cab or car and the floor of the building while attempting to enter or leave the elevator. Elevators used for carrying freight shall be equipped with a suitable device which shall act as a danger signal to warn people of the approach of the elevator. Elevator wells hereafter built shall be so constructed that that part of the inside surface of the well which comes in front of the opening or door of the cab or car shall be flush with the cab or car, and the door opening from said elevator well into the building shall be placed not more than two inches back from the face of said well, so as to allow no space for a foothold between the car and well door of the building. All the above construction work and devices shall be approved by the inspectors of factories and public buildings, except that in the city of Boston they shall be approved by the building commissioner, and in other cities by the inspector of buildings; but, upon the approval of said commissioner, or inspector of buildings, or inspector of factories and public buildings, any elevator may be used without any or all of such appliances or devices if the nature of the business is such that the necessity for the same will not warrant the expense.”</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort, for personal injuries caused by the plaintiffs being run into by a horse driven by the treasurer and general manager of the defendant, a corporation. Writs dated July 25, 1916.</p> <p>In the Superior Court the actions were tried together before Quinn, J. The material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Contract, Modification, Performance and breach.</p> <p>After an acceptance of an order for the purchase of goods upon thirty days’ credit, to be delivered in August and September, the purchaser wrote to the seller, “Send those goods on July 10th or as much of same as you can,” to which the seller replied, “I shall do my utmost to have the goods shipped at that time.” On July 22, in reply to a letter from the purchaser urging immediate delivery, the seller wrote that he had the goods ready for delivery but that he would not make delivery upon thirty days’ credit but must be paid in advance of delivery. A judge who heard an action by the purchaser against the seller for damages resulting from breach of the contract as modified, found that the time of delivery had been changed by mutual agreement and found for the plaintiff. Held, that the findings were warranted.</p>

<p>Slander. Evidence, Presumptions and burden of proof.</p> <p>In the declaration in an action of tort for slander, the plaintiff alleged that the defendant “in the Italian language” called her “buttana,” which in the English language meant a whore. The plaintiff’s evidence tended to show that the word was used in the presence of others who understood its meaning and that it was in the Sicilian dialect. There was a finding for the plaintiff. Held, that the finding was warranted.</p>

Contract for a balance of $116.06, alleged to be due upon an account annexed for services as a physician. Writ in the First District Court of Eastern Middlesex dated October 24, 1913.

<p>Tort for personal injuries received by Annie Middleton on December 1, 1916, when she was run into by an electric street car of the defendant on Chelsea Street in that part of Boston known as East Boston. Writ dated January 15, 1917.</p> <p>On January 11, 1917, Annie Middleton was adjudged insane and Mabel Healy was appointed her guardian. The plaintiff is described in the writ as follows: “Mabel Healy, who brings this action on behalf of her ward Annie L. Middleton an insane person.”</p> <p>In the Superior Court the action was tried before Raymond, 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. There was a verdict for the plaintiff in the sum of $2,000; and the defendant alleged exceptions.</p>

<p>Contract against the administrator of the estate of the principal, and the receivers of a corporation which was a surety upon the bond described in the opinion. Writ dated March 11, 1918.</p> <p>In the Superior Court the action was tried before Hitchcock, J. The administrator of the estate of the principal obligor was defaulted and the trial proceeded against the receivers of the surely. The material evidence is described in the opinion. At the close of the evidence, by order of the judge, the jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on March 31, 1919, to enjoin the defendants, owners and lessors of a building occupied in part by the plaintiff as lessee, from tearing down the leased premises.</p> <p>In the Superior Court, the suit was heard by Jenney, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. Material facts found by the judge are described in the opinion. By order of the judge, a decree was entered dismissing the bill with costs. The plaintiff appealed.</p>

Tort for personal injuries received when the plaintiff, while crossing North Main Street in Brockton, was run into by a motor car alleged to have been driven negligently by the defendant. Writ dated August 6,1918. In the Superior Court the action was tried before McLaughlin, J. The material evidence, and a ruling asked for by the defendant and refused by the judge, are described in the opinion.

<p>Contract on three promissory notes, signed by the defendants as makers and payable to the plaintiff, each for $40, payable in six months and dated respectively July 21, July 28 and August 4, 1917. Writ in the Municipal Court of the City of Boston dated February 8, 1918.</p> <p>The defendants’ answer, besides other matters, alleged “that if the plaintiff offers evidence tending to show that the defendants made the notes set forth in the plaintiff’s declaration, then the defendants say that said notes were made in pursuance of an illegal agreement and that said notes are therefore null and void.”</p> <p>On removal to the Superior Court, the action first was tried before King, J., and there was a verdict for the plaintiff. The defendants alleged exceptions which were sustained by a decision reported in 231 Mass. 513.</p> <p>The action then was heard by Morion, J., without a jury. The agreement between the plaintiff and the defendants, referred to in the opinion, relating to the termination of his active connection with the M. & C. Skirt Company, in substance provided (1) that the plaintiff was “to terminate his employment” on January 1, 1917, (2) that on terminating his employment the plaintiff was to be “credited with an amount equivalent to one month’s salary, namely: Six hundred (600) dollars, which shall be applied on account of his indebtedness to said M. & C. Skirt Company for unpaid stock subscription,” (3) that the defendants would pay him $125 a week for the six months next after January 1, 1917, (4) that during the six months beginning on July 1, 1917, the defendants would advance to him $125 a week to be secured by plaintiff’s stock in the corporation, (5) that during the year 1917 the defendants would not “increase their present salaries, and during said year, and thereafter” would not “do any act or thing to benefit their stock holdings or derive any benefit therefrom at the expense of the holdings of” the plaintiff, without first giving him “an opportunity to share in said benefits,” and (6) the defendants should “have the privilege in their discretion, if they so desire, to do, to cause said M. & C. Skirt Company to make said advances described in said paragraph four upon the terms therein stated.”</p> <p>When the time came for the advances to be made, the plaintiff agreed to take, for each weekly instalment of $125, $45 a week in cash and $80- in two notes of $40 each signed by the defendants, one note to be payable in six months and the other in a year. The first two six months’ notes so given were paid when due. The notes sued on were the third, fourth and fifth six months’ notes. When the time came for the delivery of the sixth lot of two notes, there was a dispute as to the collateral to be given by the plaintiff. Thereupon the defendants refused to make further advances. They also refused to pay the three notes here in question and this action was brought..</p> <p>At the close of the evidence, the plaintiff asked for the following rulings:</p> <p>“1. On all the evidence the plaintiff is entitled to a verdict for the amount declared on.”</p> <p>“7. Unless affected by other facts in the case, the words in the second paragraph of the agreement of December 19, 1916, to wit: ‘upon said termination, said party of the second part shall be credited with an amount equivalent to one month’s salary’ shall be construed to mean that the defendants shall cause the plaintiff to be credited on the books of the company with said amount by giving full value therefor to the company.</p> <p>“8. In the paragraph numbered second of the agreement of December 19, 1916, the words, ‘upon said termination, said party of the second part shall be credited with an amount equivalent to one month’s salary’ shall not, as a matter of law, unless affected by other facts in the case, be construed to mean that the company shall credit the plaintiff with that sum without receiving consideration therefor.”</p> <p>“13. If the plaintiff was employed by the company at a yearly salary or by the year, this was evidence that he was under contract with the company in its employ for at least one year from May 9,1916.”</p> <p>“15. If the plaintiff in good faith believed he had an agreement to work for the company at least for a year from May 9, 1916, the defendants’ promise that the plaintiff should be credited with $600 was a legal promise.</p> <p>“ 16. If at the defendants’ request the plaintiff gave up a right he had to continue in the company’s employ, then the agreement whereby the plaintiff was to be credited with $600 was an honest and legal one.”</p> <p>“ 18. If after May 9,1916, the plaintiff continued in the employ of the company under agreement with its directors to so continue at his will, then the agreement to terminate his employment upon receiving $600 out of the funds of the company was an honest and legal agreement.</p> <p>“ 19. If the plaintiff in good faith believed he had an agreement to work for the company as long as he pleased, his termination of his employment was sufficient consideration moving to the company which made legal the defendants’ promise that he should be credited with $600.</p> <p>“20. The plaintiff and the defendants, being all the directors of the company, could agree together without a formal meeting of the directors to pay the plaintiff $600 out of the company’s funds upon the termination of the plaintiff’s employment on January 1, 1917, if he had a right to continue the employment after that date, until May 9, 1917, or for a period to end at his will.</p> <p>“21. If there was a difference of opinion between the plaintiff and the defendants about his remaining in active connection with the corporation, the court, sitting as a jury, may find that the agreement to pay the plaintiff $600 was an honest agreement.”</p> <p>“26. If the stockholders other than the parties in suit and Harry Bergson paid for their stock by promissory notes and not in cash, their holdings of stock are illegal and the agreement of December 19, 1916, is legal without their consent.</p> <p>“27. The defendants must prove by a fair preponderance of the evidence that the notes are illegal.</p> <p>“28. If the plaintiff had an open account with the company upon which he was credited by the company with $600, this did not constitute an application on account of his indebtedness for unpaid stock subscription.”</p> <p>“32. The plaintiff was not legally indebted to the company for unpaid stock subscriptions on December 19, 1916.</p> <p>“33. If on December 19, 1916, the plaintiff was not legally indebted to the company for unpaid stock subscriptions, the agreement to cause the company to credit the plaintiff with $600 on account of such alleged indebtedness was no fraud on the stockholders and was not illegal.”</p> <p>“35. The directors of a corporation, acting in good faith, have the power to employ a person for a period equal to the existence of the corporation.”</p> <p>The judge filed a memorandum of findings and rulings, in substance as follows:</p> <p>It was held in this- case in 231 Mass. 513, “that the $600 named in article second [of the contract of December 19, 1916], was to be paid out of the funds of the corporation to the plaintiff, upon an agreement by the parties not made at a meeting of directors, and not submitted to the stockholders either in or outside of a meeting, and that such an agreement was illegal, if nothing was due to .the plaintiff from the corporation.</p> <p>“The books of the corporation show, and I find, that on January 1, 1917, there was credited to the plaintiff from the corporation up to that date the amount of $656.92 on account of salary; that the amount was made up principally from a weekly credit of $25, which the plaintiff agreed should be retained by the corporation to be applied on account of a promissory note of $3,500 given by the plaintiff in payment of stock subscription, and that the plaintiff was indebted to the company upon that note to an amount in excess of $656.92.</p> <p>“It was contended by the plaintiff that that note was illegal, because in violation of St. 1903, c. 437, § 14, and that, therefore, the plaintiff had a credit balance. I find and rule against the plaintiff upon this point. I find that the cornoration was not indebted to the plaintiff on January 1, 1917.</p> <p>“The plaintiff contended further that he had a contractual right to continue in the corporation’s employ after January 1, 1917, and that his relinquishment of such right legalized the payment to him and legalized the agreement to pay him $600 from the funds of the corporation.</p> <p>“I find the following facts: A contract was made between the parties on May 11, 1911, under which it was agreed that for five years the plaintiff should be 'factory manager’ and 'president’ of the corporation, and the corporation contracted with him to serve as factory manager with a certain salary therefor. He was also duly elected president. Upon the expiration of the five years, and until January 1, 1917, the parties continued to draw weekly salaries as theretofore. No further express agreement as to the terms of employment was entered into by the parties personally. There was no formal directors’ or stockholders’ meeting indicating a corporate agreement with the plaintiff that he should continue during 1917 in the employ of the corporation, and no evidence from which I could find that the defendants made such an agreement as directors outside of a meeting.</p> <p>“In the fall of 1916 various differences as to the management arose between the plaintiff and the defendant Copelof, which resulted in the decision that one or the other must sever his connection with the- management. Negotiations extending over a considerable period resulted in the agreement of December 19, 1916. As a part of these negotiations, the plaintiff on December 12, 1916, was elected at his request president, but on the understanding that he should at once resign, the resignation to take effect on January 1, 1917, and in accordance with that understanding he did resign. He knew before he was elected that he would not serve as president. It is apparent from the evidence, that in these negotiations, as well as in their prior relations and agreements, the parties all considered that they were partners, entitled to an equal share in the profits and management of the business, and the evidence would warrant a finding that there was an implied agreement, at least, between them as partners in effect up to December 19, 1916. It is equally clear that they were intending to act as partners in the various negotiations and agreements, and not as directors, and had in view their personal rights and obligations and not those of the corporation. The original contract of 1911, the method -of paying for stock by notes, the contract of December 19, 1916, and the oral evidence as to the negotiations leading up to it, all indicate such intention. The parties all entered into the contract of December 19, 1916, in good faith, in the honest belief that they were conserving the interests of the company, and that the contract was legal; but the effect of the contract, as shown by the above findings, was to obligate the company to pay to the plaintiff from its funds an amount which the company did not owe him, at a time when it was not under contractual obligations to him.</p> <p>“I, therefore, find for the defendants.”</p> <p>Material portions of St. 1903, c. 437, § 14, were as follows: " Capital stock may be issued for cash, property, tangible or intangible, services or expenses. Stock which is issued for cash may be paid for in full before it is issued or by instalments. . . . No stock shall be at any time issued unless the cash, so far as due, or the property, services or expenses for which it was authorized to be issued has been actually received or incurred by, or conveyed or rendered to, the corporation; and the president, treasurer and directors shall be jointly and severally liable to any stockholder of the corporation for actual damages caused to him by such issue.” *</p>

<p>Contract, against the Brooklyn Trust Company, a corporation doing business in Brooklyn in the State of New York, and Isaac H. Cary, also of Brooklyn, executors of the will of Alice B. Cary, late of Lexington, upon an account annexed for a balance of $575.34, alleged to be due for hay, straw and feed furnished to the defendants’ testatrix between May 2 and July 25, 1917, and for $55.80 interest. Writ dated May 23, 1919.</p> <p>The answer set up the special statute of limitations, R. L. c. 141, § 9, St. 1914, c. 699, § 3.</p> <p>In the Superior Court the action was tried before Chase, J. Material facts are stated in the opinion. In answer to a special question, the jury found that the defendants’ testatrix had received the goods described in the account annexed to the declaration and that the balances there set out were unpaid. The judge ordered a verdict for the defendants on the ground that the special statute of limitations was a bar to the action and reported the case for determination by this court, judgment to be entered on the verdict if his ruling was right, and, if the action was not so barred, judgment to be entered for the plaintiff in the sum of $631.14.</p> <p>R. L. c. 141, § 9, as amended by St. 1914, c. 699, § 3, reads as follows: “An executor or administrator, after having given due notice of his appointment, shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond for the performance of his trust, except as hereinafter provided. The court may allow creditors further time for bringing actions, not exceeding two years from the time of the giving of his official bond by such executor or administrator, provided that application for such further time be made before the expiration of one year from the time of the approval of said bond.”</p> <p>R. L. c. 139, §§ 9, 10, are as follows:</p> <p>“Section 9. If an agent appointed under the provisions of the preceding section dies or removes from the Commonwealth before the final settlement of the accounts of his principal, another appointment shall be made and filed as above provided, and the powers of an agent appointed under the provisions of this and of the preceding section shall not be revoked prior to the final settlement of the estate unless another appointment shall be made as before provided.</p> <p>“Section 10. Neglect or refusal by an executor or administrator to comply with any provision of the two preceding sections shall be cause for removal.”</p> <p>The case was. submitted on briefs.</p>

<p>Tort for the loss of a horse, alleged to have been caused by injuries received when he was run into by an electric street car of the defendant. Writ dated December 27, 1916.</p> <p>In the Superior Court, the action was tried before Raymond, J. The jury found for the plaintiff in the stun of $342.65; and the defendant alleged exceptions, which, with the evidence essential to their determination, are described in the opinion.</p>

<p>Three actions op tort against a street railway company, the first action being for damage to horses, a wagon and other property of a partnership composed of four partners by reason of a collision of an electric street car of the defendant with the wagon of the partnership, and the second and third actions being to recover for personal injuries received by two of the partners. Writs dated February 25, 1916.</p> <p>In the Superior Court the actions were tried together before Hitchcock, 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 jury found for the plaintiffs in the first action in the sum of $300, for the plaintiff in the second action in the sum of $1,500, and for the plaintiff in the third action in the sum of $175; and the defendant alleged exceptions.</p>

<p>Two actions of tobt, the first action being by a boy eighteen years of age for personal injuries caused by negligent operation, of a motor truck of the defendant while the plaintiff was riding on the running board, and the second action being by the mother of the plaintiff in the first action for consequential damages. Writs dated December 20,. 1917.</p> <p>In the Superior Court the actions were tried together before Wait, J. The material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings among others:</p> <p>“3. If the jury find that the plaintiff’s want of ordinary care, or his misconduct while riding on the defendant’s automobile contributed to produce the injury, the plaintiff is not entitled to recover.</p> <p>“4. Mere possession of an automobile raises no presumption that the person operating it is a servant or agent of the owner.”</p> <p>“6, If the jury find that Peter Maniatty’s duties were that of making ice cream and candy in the cellar, and that in consenting to the automobile being taken by a stranger, not in the defendant’s employment, he was acting outside the scope of his authority, then the plaintiff is not entitled to recover.”</p> <p>“8. It was not within the scope of the authority of Peter Maniatty to invite or direct a stranger to drive the automobile of the defendant.</p> <p>“9. An act done by a servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not to be deemed the act of the master.”</p> <p>"11. If the jury find that Leo Coyne desired to ride on the running board of the automobile, after being requested to sit on the seat, and because of being on the running board he was injured, the defendant is not liable.”</p> <p>The rulings were refused. The jury found for the plaintiff in the first action in the sum of $1, and for the plaintiff in the second action in the sum of $300; and the defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Assignment. Insurance, Life: assignment of policy. Bills and Notes, Validity. Equity Pleading and Practice, Finding by trial judge, Answer.</p> <p>The beneficiary and the insured under a policy of life insurance executed an assignment of the policy under seal, “In Consideration oí Fifteen Hundred Dollars to us paid,” to one from whom the insured had borrowed that sum of money. The insured also delivered to the assignee a promissory note bearing his signature and the forged signature of the beneficiary. The assignment did not state that it was given as security nor did it contain any reference to the note. Because of claims made, after the death of the insured, by the assignee and by a trustee in bankruptcy of the beneficiary, the insurer brought a bill of interpleader and a judge, who heard the claims of the defendants, found that the policy was pledged as security to the assignee for the loan of $1,500 and refused a request of the trustee in bankruptcy of the beneficiary that he rule “that the assignment . . . was made as collateral security for the payment of said note.” The trustee alleged an exception. The evidence was not reported. Held, that the finding of the judge must be assumed to be warranted by the evidence and that the exception must be overruled.</p> <p>In the same suit it was held that, no question of pleading having been raised at the trial, the defendant assignee was not precluded from insisting upon his rights under the assignment by an allegation in his answer, to which a copy of the assignment was annexed, that the assignment was given as security for the note.</p> <p>In the suit above described, a request by the trustee in bankruptcy for a ruling that, if the beneficiary under the policy “did-not sign the note, but did sign the assignment,” the assignee “could not recover,” was held to have been refused properly.</p> <p>It also was held that, a finding being warranted that the assignee held the policy as a pledge for the payment of money advanced and interest by virtue of an assignment executed by the beneficiary under the policy, his claim, to the extent of the amount due him, was superior to the claim of the trustee in bankruptcy, which was no greater than that of the beneficiary, and that a refusal to rule that the assignee "could not recover” was proper.</p>

<p>Negligence, Contributory, In use of highway.</p> <p>At the close of the evidence at the trial of an action against the owner of a motor vehicle for personal injuries received when the plaintiff, as he was crossing a highway after'St. 1914, c. 553, was enacted, was run into by the vehicle, the defendant asked for and the judge refused to give a ruling that, upon all the evidence, the plaintiff was guilty of contributory negligence. There was evidence tending to prove that, previous to the accident, the plaintiff had been, walking on a sidewalk, which, as he faced, was on the right hand side of the street upon which the accident occurred, and that the street, which was seventy-six feet wide, extended twelve hundred and thirty-one feet ahead of him without comer or angle, the nearest eight hundred and fifty-one feet being a roadway on a bridge over railroad tracks. Itdidnot appear whether the highway was much frequented at that place or hour, or whether the bridge over the railroad track obstructed the plaintiff’s view. There was further evidence tending to show that the plaintiff was accompanied by three companions and that, the companions, having looked ahead and not seeing the defendant’s vehicle approaching, all four started across the street nearly at right angles with the street but facing slightly in the direction from which the vehicle was approaching, and that, before they had reached the middle of the highway, the vehicle, which wastravelling at the rate of forty miles an hour on the nearest of two street railway tracks, swerved toward the plaintiff and struck him. Held, that the ruling requested properly was refused.</p> <p>At the same trial the defendant asked for and the judge refused to give a ruling that, “If, before the plaintiff started to cross the street, he looked and did not see the automobile, and if you find that the automobile must have been within his view, then, as a matter of law, he looked carelessly and if that contributed to his accident the plaintiff is not entitled to recover.” Held, that, since it singled out and emphasized only a part of the salient features of the evidence, the ruling properly was refused.</p>

<p>Conteact by an indorser against the maker of a promissory note for $1,000, dated April 12, 1918, payable in ten months from its date to Harry E. Burroughs and bearing a special indorsement by the payee to the order of Samuel H. Burroughs and indorsements in blank by him and by the plaintiff. Writ in the Municipal Court of the City of Boston dated March 17,1919.</p> <p>The defendant’s answer contained, besides a general denial, ■allegations of fraud practised by the payee of the note upon the defendant, the maker, in procuring it. There was no allegation of payment or satisfaction of the note.</p> <p>The material evidence at the hearing in the Municipal Court is described in the opinion. At the close of the evidence, the defendant asked, among others, for the following rulings:</p> <p>“3. If the plaintiff in July, 1918, discounted the note in suit and two others aggregating in face value $3,000, paying therefor $2,500 as claimed by her, and if she in or about December, 1918, paid the note in suit to the Boston Egg Company, Inc., in satisfaction of a claim by that company against her for $1,000, and if upon the note maturing and not being paid by its maker, the Boston Egg Company, Inc., reimbursed itself by deducting from the dividends otherwise payable to Harry Bovarnick, the husband of the plaintiff, the amount of $1,000, so that it has no further claim thereon, and the indorsement by the Boston Egg Company has been crossed off, then the plaintiff is not for the purpose of this suit a holder of the note in due course and for value.</p> <p>“4. If the plaintiff in July, 1918, discounted the note in suit and two others aggregating in face value $3,000, paying therefor $2,500, as claimed by her, and if she in or about December, 1918, paid the note in suit to the Boston Egg Company, Inc., in satisfaction of a claim by that company against her for $1,000, and if upon the note maturing and not being paid by its maker, the Boston Egg Company, Inc., reimbursed itself by deducting from the dividends otherwise payable to Harry Bovarnick, the husband of the plaintiff, the amount of $1,000, so that it has no further claim thereon and the indorsement by the Boston Egg Company has been crossed off, then the defendant is not liable in this action.</p> <p>“ 5. The plaintiff is not a holder in due course of the note in suit.</p> <p>“ 6. If the amount due on the note in suit was paid by Harry Bovarnick, then the note was either purchased by him or paid so as to discharge the defendant.</p> <p>“7. The plaintiff cannot be a holder of the note through a negotiation thereof to her by her husband.”</p> <p>The rulings were refused. The trial judge made the following findings:</p> <p>“I find that in the negotiation of the note in suit by the plaintiff to the Boston Egg Company, and in its re-delivery to her upon dishonor, the plaintiff’s husband merely acted as her agent, lending her his credit upon its return to her; that he was never a holder or owner thereof, and that the plaintiff does not claim under him.”</p> <p>The judge found for the plaintiff and at the request of the defendant reported to the Appellate Division his refusal to give the rulings above quoted. The Appellate Division dismissed the report; and the defendant appealed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on July 16, 1919, by the Director General of Railroads, against Peoples Express, Incorporated, a corporation carrying on the business of transporting express matter between Boston and Newburyport and Boston and Amesbury on the lines of the Boston and Maine Railroad, Charles J. McCarthy, alleged to be the treasurer of that corporation and “actively engaged in its management and operation,” and Howard J. Pike, alleged’ to be an employee of that corporation. The prayers of the bill in substance were that the defendants be enjoined from conducting the express business of the corporation over the lines of the Boston and Maine Railroad because of violations of reasonable rules and regulations of the plaintiff and of the contract between the plaintiff and the defendant corporation; also a</p> <p>Cross bill of complaint, filed on July 18, 1919, and after-wards amended, by Peoples Express, Incorporated, alleging unreasonable and illegal interference by the Director General with the conduct of its express business, and seeking a mandatory order “which shall secure to it the privilege of doing its express business on the passenger trains of the” railroad “upon terms and with facilities and accommodations which shall be reasonable and equal to those furnished to other companies doing business over the . . . railroad.”</p> <p>The defendant Pike, previous to the filing of the bill of complaint, had ceased to be an officer of or a stockholder in the defendant corporation.</p> <p>The bill and cross bill were referred to a master. It appeared that, for a period beginning atleast as far back as the year 1880, the railroad company had established rules and regulations governing the conduct of local express business, which rules and regulations were known to and had been complied with by all persons and companies doing local express business on this line or system. Among those rules and regulations were the following: “All shipments will be forwarded in baggage-car service and must be delivered to Station Baggage Master sufficiently in advance of train time to be properly weighed and way-billed. Express Messenger must accompany each shipment and present an Express Ticket to cover his personal transportation.”</p> <p>The material portions of the contract between the receiver of the Boston and Maine Railroad and the defendant corporation were as follows:</p> <p>“Whereas, I, Howard I. Pike, President of Peoples Express have made application for the privilege of doing an express business on the passenger trains of the Boston & Maine Railroad between stations outlined below and</p> <p>“Whereas, J. H. Hustis, Temporary Receiver of the said Boston and Maine Railroad, in so far as he lawfully may, has granted to me the aforesaid privilege, together with the usual facilities for doing such business, the use and enjoyment of which is hereby acknowledged,</p> <p>“ Now, Therefore, in consideration thereof, I do hereby covenant and agree as follows:</p> <p>“1. That I will not ship or cause to be shipped any articles unless properly weighed and billed by the proper railroad employes, and unless accompanied by a messenger having an express ticket, the form of which is attached hereto, and that all such property shall be'handled by me or by my agents or servants at both ends of the route.</p> <p>“2. That I will indemnify and hold harmless said J. H. Hustis, Temporary Receiver, and the Boston and Maine Railroad, their successors or assigns, against any and all claims for damage to property carried by me under this agreement while on the premises of the railroad and against any and all claims for property damage, injury to or death of any person, which may be made by me or by my agents or servants, for accidents occurring while on the premises of the railroad under the terms of this agreement; also against any and all claims which may be made on account of my acts or omissions, or those of my agents or servants, while on the premises of the railroad under the terms of this agreement.</p> <p>“It is understood and agreed that the methods and regulations regarding express traffic may be changed by the said J. H. Hustis, or by the Boston and Maine Railroad, their successors or assigns, as they see fit, and I hereby agree to conform to such methods and regulations. It is further agreed that contracts may be made covering express traffic to any and all of the stations of the railroad and that the aforesaid privilege which has been granted me may be terminated at any time by thirty (30) days’ notice in writing given by said J. H. Hustis, or by his successors, of intention to terminate.</p> <p>“In witness whereof, I have hereunto set my hand and seal this second day of January 1918.</p> <p>Boston & Amesbury</p> <p>Boston & Newburyport</p> <p>Boston & Ipswich</p> <p>Ipswich & Newburyport</p> <p>[Signed] Howard I. Pike”</p> <p>■“ witness: —</p> <p>Walters. Bean”</p> <p>The master’s findings as to this contract were as follows:</p> <p>“In January, 1918, because the Boston and Maine Railroad was in the hands of a receiver, the receiver, in the fall of 1917, prepared a uniform form of contract and caused it to be presented to all local expressmen and companies for signature. There are eighteen such persons and companies.</p> <p>“This contract was in the form previously existing, with the addition of a new provision that any express privilege might be terminated by the receiver at any time upon thirty days’ notice given by him in writing. . . .</p> <p>“This new form of contract had been presented to, and signed by, one Howard I. Pike as president of the Peoples Express Company, on January 2,1918, and the company continued to do business under it.</p> <p>“There was contention by the defendant that said Pike was not in fact president of the company and had never been duly elected to that office; also thathis act in signing the contract was void and ultra vires, as the matter of the contract had not been considered or passed upon by the directors of the company. The records of the company were not produced, and it was said none could be found bearing on Pike’s election. A copy of the by-laws was produced, which provided that the president and treasurer should jointly sign all formal documents.</p> <p>“It appeared in evidence, however, that he was held out by the company and had acted as president, and at the time he signed the contract was being so held out and acting, and I so find and report.”</p> <p>Other material findings of the master and exceptions to his report are described in the opinion. The exceptions were heard by Carroll, J., by whosé order interlocutory decrees were entered overruling the exceptions, confirming the report and reporting the case for determination by the full court.</p> <p>St. 1906, c. 463, Part II, §§ 196, 197, are as follows:</p> <p>“Section 196. Every railroad corporation shall, subject to the provisions of section two hundred and one, give to all persons reasonable and equal terms, facilities and accommodations for the transportation upon its railroad of themselves, their agents and servants, and of their merchandise and other property and for the use of its depot and other buildings and grounds; and, at any point where its railroad connects with another railroad, it shall give reasonable and equal terms and facilities of interchange.</p> <p>“Section 197. The provisions of the preceding section shall apply to all persons engaged only in a local express business for the forwarding of express matter between points within the Commonwealth in the trains or cars of any railroad corporation, and to persons desiring to engage therein who obtain the recommendation of the board of railroad commissioners therefor, and who agree in writing to indemnify the corporation against all loss of and damage to any property which is carried by them on its trains. Such recommendation shall be given only after notice to all parties interested and a hearing thereon, and with regard, among other considerations, to the public interest. Such corporation may contract with one or more persons for the express service over its railroad or system, subject to the rights of such persons as may then be engaged in, or shall have obtained the recommendation aforesaid to conduct, such local express business thereon between points within this Commonwealth under the provisions of this section; and the terms, facilities and accommodations provided for such last named persons shall not be unreasonable or unequal, having regard to the amount and character of the service and also to such reasonable regulation of said business as may be for the public interest and the efficient operation of the railroad. The provisions of this section shall not deprive any railroad corporation of any right which it has under its charter or under general laws, to perform all the transportation of property upon its railroad. The Supreme Judicial Court or the Superior Court shall have jurisdiction to enforce the provisions of this section by injunction, mandamus or other suitable process.”</p>

<p>Bill in equity, filed in the Superior Court on January 13,1919, and afterwards amended, by twenty-eight certificate holding members of the corporation, the Boston Chamber of Commerce, who ' alleged that they brought the bill for themselves and such others, “similarly situated” and entitled, as might thereafter be admitted to join them, against that corporation and thirty individuals, including the president, the treasurer, the secretary and the members of the board of directors of the corporation, including by name the members of the board’s financial and executive committees, and the members of the board of trustees elected by the board of directors under the provisions of St. 1914, c. 82, which added to the original charter § 21, hereinafter described, seeking to restrain the purchase by the trustees of certificates of membership beyond those then held by them and from voting at corporation meetings upon those which they already held.</p> <p>The defendants demurred to the amended bill. The allegations of the bill and the grounds of the demurrer are described in the opinion. The demurrer was heard by Chase, J., and was sustained; and a final decree was entered dismissing the bill. The plaintiffs appealed.</p> <p>Material portions of St. 1909, c. 251, § 13, referred to in the opinion, are as follows:</p> <p>“The new corporation by concurrent vote of a two thirds majority of both certificate holding and other members present and voting at separate meetings called for this specific purpose, notice of which meetings shall be mailed to each member not more than fifteen or less than ten days in advance, shall have the right, upon the payment of the sum of two hundred dollars and accrued interest to each certificate holder to cancel and retire all outstanding certificate-holding memberships, upon such terms and conditions as shall be determined by said two thirds majority vote. In the event of the exercise of such right of cancellation there shall be thenceforth but one form of membership in said corporation, and each member, whether previously a certificate holding or other member, shall receive a certificate representing the same individual interest in all the property, rights and privileges of the. new corporation. . . .”</p>

<p>Trust, Reformation of instrument. Equity Jurisdiction, To reform instrument in writing, Mistake. Mistake. Equity Pleading and Practice, Agreed statement of facts.</p> <p>Misconception of the legal effect of the language used in a declaration of trust is not a “mistake of law” entitling the settlor to maintain a suit in equity to reform the instrument.</p> <p>A statement, in an agreed statement of facts in a suit in equity brought by the settlors to reform a declaration of trust so that it would permit them to terminate it by a surrender of their interests to the remaindermen in their lifetime, that “there was no intention on their part to create interests which would prevent an immediate distribution in the event of such a surrender,” falls short of indicating that the settlors had an intention not to create such interests.</p> <p>An instrument will not be reformed on the ground of mistake except upon full, clear and decisive proof of the mistake.</p> <p>A declaration of trust which placed upon the trustees important contractual duties and responsibilities will not be reformed by reason of a mistake in which it is not shown that thdltrustees participated.</p> <p>A declaration of trust by a husband and his wife provided for three trustees, one of whom was one of the settlors, and that the income of the trust fund should be paid to the settlors and to the survivor of them for life and that upon the death of such survivor the trust fund should be distributed among such of the settlors’ sons as were then living and the next of kin of such as should have died. It contained no provision for an earlier termination of the trust. The settlors brought a bill in equity to reform the instrument so that it would permit them to terminate the trust by a surrender of their life interests to the remaindermen, alleging that it was their intention that the contingent remainders should be subject to the condition that they should not vest if the interest of the settlors, previous to the death of the survivor of them, should have been released by them, and that appropriate language to express that intention was omitted from the instrument through mistake. All living persons of adult age interested in the trust assented to the granting of the prayer of the bill. A guardian ad litem represented the interests of minors and persons not in being. The suit was heard upon an agreed statement of facts, which recited that it was the belief of the settlors "that they had the power to terminate the trust at any time by surrender of their life interests to the remaindermen, and there was no intention on their part to create interests which would prevent an immediate distribution in the event of such a surrender.” Nothing appeared as to the intentions or beliefs of the trustees other than that of one of the settlors who also was a trustee. Held, that the suit could not be maintained.</p>

<p>Negligence, Invited person, Railroad. Evidence, Of custom. Custom.</p> <p>At the trial of an action against a railroad company for personal injuries caused by a bundle of newspapers, pushed from a baggage car by an employee of the defendant, falling upon the plaintiff, who was at the door of the car to receive the papers for his employer, there was evidence tending to show that, for a “year or so,” daily, in accordance with a “system in vogue” when the plaintiff first entered upon the employment of receiving the papers from the defendant at that station, it was customary for the plaintiff to take a truck of the defendant, wheel it to where the baggage car of the- defendant would stop, take the bundles of papers from the baggage car door, where the defendant’s baggage master had piled them in tiers, and place them on the truck. Held, that the evidence warranted a'finding that the plaintiff, when injured, was at the baggage car door with the rights of one invited by the defendant to be there.</p>

<p>•Corporation, Rights tif minority stockholder. Equity Jurisdiction, Suit by minority stockholder in corporation. Equity Pleading and Practice, Bill.</p> <p>A demurrer to a bill in equity by a minority stockholder, who also is one of eight directors of a Massachusetts corporation, against the corporation and the other seven directors, who include all the officers of the corporation, to enjoin the defendants from carrying out votes, passed by the seven defendant directors against the objection and vote of the plaintiff, discharging without legal consideration a debt owed to the corporation by one of the defendants and voting to all of the directors and officers except the plaintiff salaries in amounts which differed as to the different defendants but which in each case were excessive and unreasonable, and to compel an accounting by the individual defendants and a repayment of such excessive sums received by them, will be overruled where, from the allegations of the bill, it appears that four of the seven individual defendants conspired with the other three to deprive and to defraud the plaintiff of her rights as a stockholder and adopted the votes in pursuance of that purpose.</p> <p>The bill in equity above described was held not to be multifarious.</p> <p>It was not necessary for the plaintiff, before commencing the suit above described, to apply to the corporation to bring suitable action against the individual defendants because it appears from the facts alleged in the bill and admitted by the demurrer that such application would have to be made to the defendants to take action against themselves and either would be futile and unavailing or would result in the authors of the wrong conducting litigation in the name of the corporation against themselves, which would be contrary to the established principles of justice.</p> <p>From allegations in the bill in equity above described, it appeared that the plaintiff was present at the meeting when the objectionable votes were passed and that she protested and voted against them, and, within six months thereafter, brought the suit. Held, that the plaintiff showed proper diligence in asserting her rights.</p> <p>The bill in equity above described was held under the circumstances not to contain matters which were immaterial and irrelevant and therefore in violation of R. L. c. 159, § 12, by reason of the inclusion therein of certain allegations relative to the history of the formation in 1899 of the defendant corporation from a partnership founded in 1858, to other business interests, activities and successes of the plaintiff, to a description of holdings of shares, preferred and common, of the individual defendants and the nature of their interests therein, to past activities of some of the defendants in common with the plaintiff which led to antipathy between them and furnished the motive for the defendants’ alleged wrongful conduct, to the fact that one of the defendants was the president of a national bank where the corporation did a large business, and allegations to the effect that in the past the profits of the corporation had been paid, partly in dividends and partly in the form and under the guise of salaries to the large stockholders who owned and controlled substantially the entire issue of the common stock of the corporation.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the, county of Suffolk on August 25, 1919, by the trustees under an antenuptial declaration of trust made by Hannah Parkman Newell, in contemplation of her marriage to Edward S. Osgood.</p> <p>The material allegations of fact, which were admitted to be true by the defendants in their answers, and such of the facts included in agreed statements of fact as are material, are stated in the opinion.</p> <p>The suit came on to be heard before Carroll, J., who reserved it for determination by the full court.</p>

Tort for personal injuries sustained on January 23, 1917, alleged to have been caused by slipping upon an accumulation of ice on the sidewalk in front of and adjoining vacant land owned by the defendant on A Street in South Boston. Writ dated May 25> 1917.

<p>Evidence, Relevancy and materiality. Contract, Consideration. Accord and Satisfaction.</p> <p>Where, in the answer in a suit based upon a judgment debt alleged to be owed to the plaintiff by a woman, the defendant alleged satisfaction of the debt by an accord and satisfaction, the defendant properly may be allowed to introduce evidence of negotiations leading up to a payment of less than the amount of the judgment debt under an agreement by the plaintiff that such amount would be accepted in satisfaction of that debt and also of a judgment debt owed to the plaintiff by the defendant’s husband, which she was under no obligation to pay, and that the plaintiff further in writing agreed to indorse full satisfaction upon executions which had issued upon the judgments.</p> <p>An oral agreement by a judgment creditor with the judgment debtor to receive a certain sum, less in amount than the judgment debt, in full satisfaction of that judgment debt and also of a judgment debt owed to the creditor by another person, to which the first judgment debtor is a stranger, and to indorse satisfaction in full upon executions which had issued upon both judgments, when the first judgment debtor has made the payment stipulated and the creditor has made the indorsement of full satisfaction upon both executions, is not nudum pactum, and a suit in equity by the judgment creditor to enforce the first judgment must be dismissed.</p>

<p>Contract, by the payee named in two promissory notes against L. J. Sturtevant, who signed as maker, and R M. Sturtevant, who signed the instruments on the back before they were delivered, for a balance due upon the notes. Writ in the Municipal Court of the City of Boston dated January 15, 1918.</p> <p>The defendant L. J. Sturtevant was defaulted. The action was tried in the Municipal Court against R M. Sturtevant (hereinafter called the defendant). At the close of the evidence, the plaintiff asked for the following rulings:</p> <p>“1. That, if the notes set forth in the plaintiff’s declaration were signed by both of the defendants before delivery to the plaintiff, and on the statement of the plaintiff that she would not advance the money merely on the note of the defendant L. J. Sturtevant, but must have notes from both of the defendants, then the defendants are co-makers of the notes, and the plaintiff is entitled to consider the defendant R. M. Sturtevant as the copromissor with the defendant L. J. Sturtevant.</p> <p>“2. That, if the defendant R.' M. Sturtevant is a co-maker with the defendant L. J. Sturtevant, then neither of the defendants is entitled to a demand and notice of non-payment.</p> <p>“3. That, the notes set forth in the plaintiff’s declaration being payable on demand, the bringing of this action is a sufficient demand.</p> <p>“4. That, if payments were made by the defendant L. J. Sturtevant on said notes within six years from the date of the bringing of this action, then this action is not barred by the statute of limitations against either of said defendants.</p> <p>“5. That, if payment were made on said notes by the defendant L. J. Sturtevant within six years from the date “of the bringing of this action to the knowledge of the defendant R. M. Sturtevant, then this action is not barred by the statute against the said R. M. Sturtevant.</p> <p>“6. If within six years from the date of the bringing of this action the defendant R. M. Sturtevant acknowledged that said notes were still outstanding and enforceable, and promised that the same would be paid, then the action is not barred by the statute of limitations against the said R. M. Sturtevant.</p> <p>“7. That if the plaintiff would not have loaned the money and taken the notes without the signature of the defendant R. M. Sturtevant, then the same are supported by sufficient consideration as against said R. M. Sturtevant.”</p> <p>The judge denied these requests and found as a fact that the defendant signed the^ notes in question on the back thereof, although before delivery; that he never paid any part of either ' the principal or the interest due on the notes; that no demand for the payment thereof ever was made on him, and that the notes were dated February 29, and October 2, 1899, and were not witnessed. He ruled that the defendant was not a co-maker but an indorser, and that, as to him, the action was barred by the statute of limitations.</p> <p>At the request of the plaintiff, the judge reported the case to the Appellate Division, who dismissed the report. The plaintiff appealed.</p> <p>Material statutory provisions are the following:</p> <p>R. L. c. 73, § 34, cl. 6. “Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign he is to be deemed an indorser.”</p> <p>R. L. c. 73, § 80. “A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” "</p> <p>R. L. c. 73, § 106. “Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.”</p> <p>R. L. c. 202, § 12. “No acknowledgment or promise shall be evidence of a new or continuing contract whereby to take an action of contract out of the operation of the provisions of this chapter or to deprive a party of the benefit thereof, unless such acknowledgment or promise has been made by, or is contained in, a writing signed by the party who is chargeable thereby.”</p> <p>R. L. c. 202, § 14. “A joint contractor or his executor or administrator shall not lose the benefit of the provisions of this chapter so as to be chargeable by reason only of an acknowledgment or promise made or signed, or by reason of a payment made by, any other joint contractor or his executor or administrator.”</p>

<p>Landlord and Tenant, Landlord’s liability to tenant for defect.</p> <p>At the time of the letting of an unfurnished house to a tenant at will there was in it a hot air furnace with a hot water coil attachment which had been installed for over twenty-one years and which was defective owing to a lack of an appliance to provide for the relieving of excessive pressure in the coil. The tenant examined the apparatus when he agreed to take the premises and it appeared to be in good working order. Six months later, there was an explosion resulting in an injury to the tenant, who brought an action of tort to recover therefor against the landlord, at the trial of which there was no evidence that the landlord knew of the defective condition or had knowledge of facts from which such a condition might have been inferred. A verdict was ordered for the defendant. Held, that</p> <p>(1) The rule of caveat emptor applied and there was no implied warranty by the defendant that the premises were fit for use;</p> <p>(2) Even if it be assumed that the defect was hidden and not ascertainable by the plaintiff upon examination preceding the tenancy, the verdict was rightly ordered, since there was no evidence of knowledge by the defendant of the concealed defect or of facts which would put him upon notice.</p>

<p>Insurance, Of motor vehicle, Theft, Notice of loss. Waiver.</p> <p>In an action against an insurance company by one of two persons upon a policy of insurance insuring them “as their interest may appear’’against loss of an automobile by theft, and containing a condition that failure to give notice of loss within a certain time shall render a claim of loss void, if neither person gives the required notice after the theft of the automobile, neither person has any enforceable right under the policy and a payment by the company to one of the insured persons of the amount of his loss is a mere gratuity and does not operate as a relinquishment by the company of the right to insist that a failure by the other person to give the required notice was a bar to an action by him upon the policy.</p>

Contract with a declaration upon an account annexed for $74 alleged to be due to the plaintiff for storage of the defendant’s automobile. Writ in the Municipal Court of the City of Boston dated February 20, 1919. At the trial in the Municipal Court the judge found that the plaintiff was entitled to recover the amount claimed for storage. Later there was a hearing before the judge upon the question of taxation of costs. The evidence at the hearing is described in the opinion.

<p>Contract upon a judgment for $800 of the Supreme Judicial Court for the State of Maine on an order issued by that court in an action of libel for divorce. Writ in the Municipal Court of the City of Boston dated September 18, 1918.</p> <p>The defendant filed a motion to dismiss the action on the ground “that the plaintiff is and was at the time of the bringing of this action the wife of the defendant.”</p> <p>At the trial in the Municipal Court the defendant requested the judge to rule “ that this action being brought by a wife against her husband cannot be maintained for want of jurisdiction of the court to entertain actions between husband and wife at common law. It being admitted in open court and by the pleadings and evidence that the plaintiff and the defendant are still husband and wife.” The judge denied the motion to dismiss, refused the ruling requested, found for the plaintiff for the full amount claimed with interest and at the request of the defendant reported the case to the Appellate Division, who vacated the finding and ordered judgment for the defendant. The plaintiff appealed.</p>

<p> Mechanic’s Lien. Public Work. </p> <p>A staging and falls, used in the work of painting and plastering a public pier and steel shed but not made a part thereof, are not labor performed or furnished or material used in “the construction or repair of public buildings or other public works” within the intendment of R. L. c. 6, § 77.</p> <p>A premium upon a policy of insurance against liability, issued to a contractor constructing a public building or work, is not labor or material used in “the construction or repair of public buildings or other public works” within the intendment of R. L. c. 6," § 77.</p> <p>A contractor engaged in the construction of a pier and steel shed for the city of New Bedford under a contract with the Harbor and Land Commissioners furnished a bond with surety in conformity with R. L. c. 6, § 77, as security for the payment of labor performed or furnished and material used in such construction. The work included a driveway on the pier and through the building, but the contractor was released from the construction of the driveway and it was completed by another contractor under a separate contract. The work, excepting the driveway, was completed on a September 4. The driveway was completed in October. In a suit brought by creditors to recover under R. L. c. 6, § 77, for labor performed or furnished and materials used in the construction of the work, it appeared in evidence that certain creditors had filed their claims previous to the September 4, and certain other creditors had filed their claims more than sixty days subsequent to that date but within sixty days after the completion of the driveway. The surety contended that any proof of claims filed previous to September 4 or subsequent to sixty days thereafter was not in compliance with the statute. Held, that the work referred to in the statute embraced the entire work contracted for when the security was given, whether completed by the original contractor or by another, and that claims filed at any time previous to sixty days after the completion of the driveway were seasonably filed.</p>

<p> Labor Union. Strike. Unlawful Interference. Equity Pleading and Practice. </p> <p>A contract submitted by a labor union to an employer, whereby, after its acceptance, preference in employment would be given to union workmen by notifying the union officials when additional journeymen and apprentices were needed and all contracts of employment would be submitted and executed in accordance with the union’s by-laws and constitution, in effect would force the employer to maintain a shop in which were employed only union workmen, although the contract also provided that, if the union could not furnish and supply competent help, the employer might secure such help from other sources.</p> <p>The officers of a labor union endeavored to persuade an employer, maintaining "a shop in which were employed both union and non-union workmen,” to enter into an agreement with the union establishing hours, wages and conditions of work, under which preference in employment would be given union workmen and all contracts of employment would be submitted and executed in accordance with the union by-laws and constitution, no employee of six weeks’ standing would be laid off temporarily owing to slackness of work, and all disputes, with the exception of those arising from wages, hours and apprenticeship rates, would be submitted to an arbitration committee composed in part of members of the union. The employer refused to consider the contract and the officers of the union thereupon called a strike in the employer’s shop, established picketing and caused letters to be sent to the employer’s customers ■ and employees urging a boycott of the employer. In a suit in equity brought by the employer against the officers and members of the labor union, it appeared that the picketing was conducted in a coercive manner with threats and scurrilous language for the purpose of rendering the employment of the employees uncomfortable or unbearable and of causing them to leave their employment, and that the purpose of the strike and boycotting letters was to compel the employer to accept the union agreement. Held, that</p> <p>(1) The purpose of the strike was unlawful;</p> <p>(2) The officers and members of the union were not protected by St. 1913, c. 690, which was applicable only to a lawful strike lawfully conducted;</p> <p>(3) The employer was entitled to injunctive relief.</p>

<p>Contract or tort against a firm of stockbrokers, with a declaration as amended in two counts, the first count being in tort for the conversion of certain securities, and the second in contract for $1,505,577.94, money alleged to have been had and received by the defendants to the plaintiff’s use. Writ dated January 20, 1917.</p> <p>The case was heard in the Superior Court by Raymond, J., upon the auditor’s report, which was the only evidence introduced. Material portions of that report and questions of law raised in this court are described in the opinion.</p> <p>The judge made alternative findings as follows: “I find that the facts set forth in the auditor’s report are true. I find for the plaintiff under the first count in his declaration and assess damages on the principles followed by the auditor in the sum of $80,309,07 including interest to September 20, 1919.</p> <p>“If my ruling that the defendants are entitled to mitigation of damages to the extent of the same percentage of the plaintiff’s indebtedness on June 20, 1916, that the value of sixty-four hundred shares of Butte and Superior on that date bears to the total value of all of the securities, cash payments and dividends appearing to the credit of the plaintiff on the defendants’ books on that date, is wrong, then I rule that the defendants are estopped to deny that the amount of the indebtedness of the plaintiff to the defendants at the date of the writ was $198,664.96 and deducting that from the value of the plaintiff’s stock converted, I assess damages under the first count in the sum of $440,860.85. The defendants duly excepted to this ruling.</p> <p>“If my ruling that the plaintiff is entitled to recover under the first count of his declaration is wrong, I find for the plaintiff under the second count in-his declaration and find that the defendants should account to the plaintiff for and that the plaintiff should recover from the defendants $542,634.59. This finding is the result of subtracting from the value of the total consideration delivered by the plaintiff to the defendants at the times of delivery as shown ip the auditor’s report, the amount of the plaintiff’s indebtedness paid by the defendants to obtain possession of some of the securities delivered and also the payments of cash by the defendants to the plaintiff thereafter, to which I add interest from the date of the writ to September 20, 1919. amounting to $85,-821.53, making a total of $628,456.12.”</p> <p>The judge then reported the action to this court for determination.</p>

<p>Contract upon an assignment of wages to secure the payment of a debt of $95 incurred in the purchase of merchandise. Writ in the Municipal Court of the City of Boston dated April 21,1919.</p> <p>The assignment, excepting the in testimonium clause, was as follows:</p> <p>^ “Know all men by these presents.</p> <p>“That I, Herman Tobias, of Boston in the County of Suffolk, for a valuable consideration paid to me by Arthur L. Gilman of Boston, Massachusetts, the receipt of which I do hereby acknowledge, do hereby assign and transfer to said Arthur L. Gilman all claims and demands, not exempt by law (which I now have, and all) which within a period of two years from the date hereof I may and shall have against my present employer and against any' person whose employ I shall hereafter enter (for all sums of money due, and) for all sums of money and demand which at any time within said period may and shall become due to me for services as cap maker. To have and hold the same to the said Arthur L. Gilman, his executors, administrators and assigns to secure a debt (1) of one hundred dollars ($100.00) for goods actually furnished by the assignee amounting to one hundred dollars ($100.00). (2) Contracted simultaneously with the execution of this assignment. (3) Three-fourths of the weekly earnings or wages, which are forty dollars ($40.00), are exempt from this assignment.”</p> <p>The material facts appearing at the hearing in the Municipal Court are described in the opinion. At the close of the evidence, the plaintiff asked for the following rulings:</p> <p>“ 1. Upon all the evidence the plaintiff is entitled to recover.</p> <p>“2. St. 1909, c. 514, §§ 121-126, inclusive, as amended by St. 1916, c. 208, §§ 1-3, inclusive, binds all wages earned by the assignee within the statutory period whether) at the time the assignee files notice with the employer of the assignment together with a statutory account, the assignor is or is not then employed by the person by whom the assignor was employed at the time the assignment was executed and delivered to the assignee.</p> <p>“3. If the court finds that the assignment in the case at bar is in the form required by law and that the plaintiff has done all acts necessary to bring himself within the requirements of the law relative to future wage assignments, it is immaterial whether the assignor be or be not employed by the person by whom he was employed at the time the assignment was given.</p> <p>“4. St. 1909, c. 514, §§ 121-126, inclusive, as amended, binds all wages earned by the assignor within the statutory period, whether or not the assignor is employed by the person by whom he was employed at the time the assignment was executed.</p> <p>"5. The intent and purpose of the legislative acts referred to is to bind to the assignee when the assignment is sought to be enforced, all wages earned by the assignor whether or not he, at the time the assignment is sought to be enforced, is or is not employed by the person by whom he was employed at the time the assignment was executed.”</p> <p>The trial judge refused to rule as requested, found for the defendant and, at the plaintiff’s request, reported the case to the Appellate Division, who dismissed the report. The plaintiff appealed.</p>

<p>Denise and Legacy. Trust, Charitable. Perpetuities, Rule against. Executor and Administrator. 'Massachusetts Institute of Technology.</p> <p>A testator, after bequeathing an annuity to his step-mother and certain personal effects to a friend, devised and bequeathed the residue of his property to trustees, who were the same persons as his executors, to invest, reinvest and hold for a period not exceeding twenty-one years after his decease, adding income to principal until the fund should amount to the net sum of $750,000, and, at the expiration of twenty-one years after the time of his decease, or sooner, should the accumulated fund amount to the net sum of $750,000, then and in either event to pay over the entire net accumulated fund to the Massachusetts Institute of Technology for the purpose of founding and endowing a department of naval architecture and marine engineering to be called “Pratt School of Naval Architecture and Marine Engineering,” “upon the express trust and condition” that, upon payment of the fund by the trustees to the Institute, it "shall forthwith erect upon its lands” a building, to be approved by the trustees, using such portion of the fund for that purpose as might be necessary, the remainder of the fund to be held by the Institute “in trust forever, and the income therefrom is to be applied and used for the support and maintenance of said ‘Pratt School,’ and said ‘Pratt School’ is to be forever devoted to the education and training of such young men of all classes in life as may seek instruction in naval architecture and marine insurance.” Held, that</p> <p>(1) The trust estate vested in the Institute with the receipt of the fund;</p> <p>(2) The direction or condition that the building should be erected forthwith by the Institute after the receipt of the fund was a requirement that it should be erected within a reasonable time, having regard to the circumstances;</p> <p>(3) The erection of a building, during the World War, such as the state of development of naval architecture and marine engineering demanded, would have required an expenditure of money entirely disproportionate to the fund, and would have left an income inadequate to maintain the building or the school;</p> <p>(4) The legal title and the equitable title came into existence at once on the death of the testator, subject to the administration of the estate and the accumulation of principal and income to the net amount of $750,000 within twenty-one years;</p> <p>(5) The entire residue of the estate, that is, all the estate except so much as was needed to be set apart to insure the payment of the life interest and the annuities, formed a trust for charitable uses, subject to be divested if the principal and accumulated income did not amount to $750,000 on or before the expiration of twenty-one years;</p> <p>(6) The fund which was formed was not limited upon a life estate, but was all the rest and residue of property owned by the testator, some of which was subject to the life interests of individuals;</p> <p>(7) The provisions of the will constituted, not a gift to an individual to be followed by a remote gift to a charity, but an immediate gift of a legal interest to be held on a charitable trust.</p> <p>The will above described also contained a provision that "said building shall have suitably inscribed upon its outer walls the name ‘Pratt School of Naval Architecture and Marine Engineering’ and that a suitable bronze tablet bearing the inscription ‘Presented by Charles Herbert Pratt to the loving memory of Eleazer Eranklin Pratt, Catherine Blake Pratt and Franklin Stetson Pratt,’ be erected in some appropriate place in the interior of said building.” Held, that the direction to erect a memorial of bronze in the interior of the building was a mere incident in the construction of the building; and the testator’s motive to commemorate himself and family did not prevent the main purpose from being charitable.</p> <p>In a will, from the provisions of which it was clear that the purpose of the testator was to found and endow a school of naval architecture and marine engineering, the only provision touching directly upon the nature of instruction to be given in the school read, “and said ‘Pratt School’ is to be forever devoted to the education and training of such young men of all classes in life as may seek instruction in naval architecture and marine insurance.” Held, that it was plain that the word “insurance” was used inadvertently, and should be stricken out.</p> <p>The next of kin of the testator in the will above described contended that they, and not the Massachusetts Institute of Technology, were entitled to any surplus above $750,000 under the provisions of the will, but it was held, that the manifest intent of the testator was to give the entire rest and residue of his estate to the charitable purpose defined in the will, subject only to the limitation that it should not be paid until it and the accumulated income reached the limit set, $750,000, within twenty-one years after bis decease.</p> <p>A trustee, to whom has been devised and bequeathed real and personal property under a will of which he is also executor, and who is exempt from giving surety on his bond as trustee and executor, where the*will provides that he is not to transfer the trust property to the beneficiary until it, with accumulations, has attained a certain amount, may acquire, before the allowance of his final account as executor, title to the personal property by any notorious act of himself as executor showing his election to hold the property thereafter as trustee, and, if the combined real and personal property then has attained the designated amount, he may convey the real estate to the beneficiary, who will thereby acquire a valid title.</p>

<p> Devise and Legacy. Power. </p> <p>A testator by his will and a codicil provided that the share of one of his sons in the residue of his estate should go to a trustee, the income thereof to be applied equally to the support of the son’s wife and her children by him, and that in the event of the death of either the wife or a child, the income was to be divided equally among the survivors, and that, should a child of the son marry, • he or she was to have “the right to dispose of his or her interest by will on his or her decease.” At the death of the testator, the son’s wife and two children, a grandson and a granddaughter of the testator, were living. The grandson married and died, leaving a will naming his wife executrix and devising and bequeathing to her all his property, including any over which he had the power of testamentary disposition. Upon a bill for instructions as to the proper dis- ■ position of such part of one third of the income from the trust fund which had accrued and had not been paid to the grandson at the date of his death; and of the income accruing thereafter, and also as to disposition of-the principal, it was held, that</p> <p>(1) The widow of the deceased grandson was entitled as executrix to receive one third part of the income which had accrued between the date of the last payment of income to her husband and his death;</p> <p>(2) The widow was not entitled as executrix or otherwise to receive any part of the income from the trust fund accruing after her husband’s death;</p> <p>(3) The entire income accruing after the death of the grandson should be paid to his mother and his sister equally, and, upon the death of either of them, to the survivor of them wholly;</p> <p>(4) The widow of the grandson was entitled to one half the principal of the trust fund upon the death of her husband’s mother and sister.</p> <p>The other residuary legatees under the will and codicil creating the trust were not entitled to receive any part of the principal of the fund.</p> <p>In the suit above described, it was necessary, in order properly to determine the rights and interests of the life beneficiaries, to make some determination, before the termination of the life estates, of what disposition should be made of the fund upon that event; but it was said that this departure from the well settled rule that such determination before the event is premature should not be regarded as a precedent.</p>

<p>Practice, Civil, Discontinuance, Motion to vacate judgment. Judgment. Words, “Trial.”</p> <p>The plaintiff, in an action of contract in which no declaration in set-off has been filed and which has not been referred to an auditor, has a right to discontinue his action at any time before trial.</p> <p>It seems that, since the enactment of St. 1914, c. 576, § 1, the opening of an action for a trial upon the merits before an auditor, or before a judge where no jury has been claimed, or before a jury fixes the time after which the plaintiff cannot discontinue his action as a matter of right.</p> <p>An amended declaration in an action of contract contained two counts, the first being upon a contract" in writing and the second upon an account annexed for-labor and materials performed and furnished under the contract in writing. The defendant filed a general answer to the second count and a motion to strike out certain portions of the first count. The motion having been allowed and the case reported to this court under R. L. c. 173, § 105, this court, treating the motion as a special demurrer to the first count, allowed it. Thereafter, without notice to the defendant and without leave of court, the plaintiff discontinued his action. Held, that he had a right so to discontinue at that time.</p> <p>After the discontinuance in the circumstances above described, judgment was entered for the defendant for costs. The defendant, alleging that the plaintiff had brought an action for the same cause in a federal court, moved under R. L. c. 193, § 14, that the judgment be vacated. The motion was denied, and the defendant appealed. Held, that the order denying the motion must be affirmed.</p>

<p>Appeal to the Superior Court under the workmen’s compensation act from a decision of the Industrial Accident Board as follows: “The Industrial Accident Board, revising the findings and decision of the board member [[which awarded compensation to the employee], find and decide that the personal injury received by the employee . . . did not arise out of and in the course of his employment.”</p> <p>The appeal was heard by King, J. Material facts are described in the opinion. By order of the judge a decree was entered “upon all the evidence that the personal injury received by the employee on October 26, 1917, did not arise out of and in the course of his employment.” The employee appealed.</p> <p>The case was submitted on briefs at the sitting of the court in November, 1919, and afterwards was submitted on briefs to all the Justices.</p>

<p>Practice, Civil, Finding by judge, Auditor’s report. Contract, Construction, Performance and breach.</p> <p>From the report of an auditor, to whom was referred an action of contract for an alleged breach by the defendant of an agreement to sell and deliver to the plaintiff two thousand barrels of cocoa powder by lot shipments, it appeared that, following conversations between the parties which were not in evidence, the defendant wrote to the plaintiff “confirming” the conversations "as per contract enclose,” and that the “contract,” although it contained a provision that the seller had “the privilege of billing and shipping all goods not withdrawn at the expiration of this contract,” contained no promise as to the amounts or number of the lot shipments. The report contained sentence extracts from several letters between the parties bearing upon that subject and then the following statement: “From the remainder of the above correspondence and the confirmation and such inferences of fact as may be drawn therefrom I find . . . ,” which was followed by a finding that the lot shipments were to be “in such amounts, not to exceed one hundred (100) barrels per week, as the plaintiff should direct.” The plaintiff so directed shipments that, when the contract had eleven weeks only to run, there were more than fourteen hundred barrels uncalled for by the plaintiff. The defendant then cancelled the contract. It also appeared that the plaintiff failed to send a check for each lot ordered by him before shipment was made, which, the auditor found, was a requirement of the agreement. A judge of the Superior Court, who heard the case upon the auditor’s report as the only evidence, found for the defendant. Held, that</p> <p>(1) The judge was warranted in finding that the contract between the parties was not wholly embodied in the letter of confirmation of the plaintiff’s order;</p> <p>(2) The judge was warranted in finding that the plaintiff had broken the contract, that the breach went to its essence, that the cancellation by the defendant was warranted; and in finding for the defendant.</p>

<p>Contract upon an agreement in writing for the employment of the plaintiff as a general manager of the defendant’s “retail ladies’ outfit store” in Springfield, the agreement providing that the plaintiff should give “all his undivided time and attention exclusively to the said business,” and should receive as compensation $50 per week and twenty per cent of the net profits earned in the store. Writ dated June 25, 1917.</p> <p>In the 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 defendant then asked that certain special questions be submitted to the jury. The request was refused. The jury found for the plaintiff in the sum of $1,458; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Complaint, received and sworn to in the Municipal Court of the City of Boston on October 22,1919, charging the defendant with practising optometry without being lawfully authorized to do so or registered with the board of registration in optometry; also a</p> <p>Complaint, received and sworn to in the same court on October 25, 1919, charging the defendant with holding himself out as a practitioner of medicine without being lawfully authorized to practise medicine or duly registered with the board of registration in medicine.</p> <p>On appeal to the Superior Court, the complaints with the defendant’s consent were tried together. The material evidence is described in the opinion.</p> <p>At the close of the evidence, the defendant asked for the following rulings in the first case:</p> <p>“1. That the acts complained of are not subject to legislative regulation, because the defendant did not operate on nor prescribe for any physical ailment or any physical injury or deformity of another.</p> <p>"2. That the acts complained of do not constitute an offence, for the reason that St. 1912, c. 700, on which said complaint is based, is unconstitutional and contrary to arts. 6 and 7 of the Declaration of Rights and contrary to the Fourteenth Amendment to the Constitution of the United States.”</p> <p>The rulings were refused.</p> <p>As to the second complaint, the defendant requested the following rtilings:</p> <p>"1. That on all the evidence, the defendant cannot be said to have held himself out as a practitioner of medicine.</p> <p>“ 2. That although the defendant had a sign on the door of the room occupied by him as an office reading 'Doctor of Ophthalmology’ from that he cannot be said to have, held himself out as a practitioner of medicine.”</p> <p>These rulings also were refused. The jury found the defendant guilty on both counts; and the defendant alleged exceptions.</p>

<p>Contract, Construction. Practice, Civil, Premature action.</p> <p>In an action for a breach of a contract in writing, dated October 10, 1916, it appeared that the contract provided that the plaintiff, the owner of certain land in the State of Florida, should deposit $2,915 in a certain bank to the account of the defendant “to be spent by him in the development and cultivation of” the land; tiiat, in “ consideration of the development and cultivation of the land,” the defendant should receive one half of the income derived from it “as long as this agreement remains in force;” should “not be prevented from using his own judgment and discretion in the matters of planting, cultivation, and sales on the said land, nor be interfered with in carrying out his plans, while this agreement is in force;” should “improve, develop, and cultivate [the land] to the best of his skill and ability . . . and . . . make the land produce as much as he can,” and should render to the plaintiff a careful and complete account of income and pay to him one half thereof; that expenses should be paid by the plaintiff, the sum originally deposited “to pay for only the production of the first crop raised and harvested in 1917.” The plaintiff agreed “that this agreement shall not terminate before January 31, 1919, if so desired by the” defendant, and that the defendant might terminate it at any time after May 31, 1918. The action was brought on August 8, 1917. Held, that</p> <p>(1) The contract was entire and not divisible;</p> <p>(2) The action was prematurely brought;</p> <p>(3) The defendant was under no obligation to account to the plaintiff for money paid to him so long as the defendant was endeavoring in good faith to perform the contract according to its provisions.</p>

<p>Equity Pleading and Practice, Appeal, Master. Partnership, What constitutes. Trust, Resulting. Husband and Wife. Corporation, Resulting trust in shares issued upon incorporation. Equity Jurisdiction, Estoppel, Laches, Statute of limitations, To enforce resulting trust.</p> <p>Upon an appeal from a final decree entered in a suit in equity by order of a single justice who had heard the suit solely upon the report of a master which did not contain a report of the evidence, this court, with reference to the facts found by the master and the power and duty to draw inferences therefrom, stand as did the single justice, unaffected by conclusions reached by him.</p> <p>Upon an appeal from a decree in a suit in equity entered by order of a single justice who had heard the suit solely upon the report of a master which did not contain a report of the evidence, the facts found by the master must be taken as true unless upon the face of his report they are mutually inconsistent or contradictory and plainly wrong.</p> <p>A master, who heard a suit in equity in which it was necessary to determine the nature of a business relationship between a certain man and the proprietor of a laundry, found that the man was not a partner in the business and had no interest therein except as an employee. He also found that the man had some customers of his own, whom he brought to the proprietor of the business, that he worked in part on a commission basis, that he induced the proprietor to adopt a trade name signifying a partnership in order that he might represent himself as a partner, that he lent small sums of money to the proprietor and borrowed money from him and that he also drew money in excess of what was due to him, all of which he repaid. Held, that the subsidiary facts found by the master were not incompatible with the main finding that the man was not a partner in the business.</p> <p>A master, to whom was referred a suit in equity by a woman against the executor of the will of her husband to have shares of stock in a corporation, issued to the husband and a nominee of his, impressed with a resulting trust in her favor, found that, before their marriage, the man, who was without substantial financial resources and was employed by the proprietor of a laundry, conducted negotiations which resulted in the execution by the proprietor, in September of a certain year, of a bill of sale of the goods and chattels of the laundry business to the plaintiff, who then lived in the same house with the man, and the delivery of that instrument to the man. Immediately thereafter the plaintiff, at the laundry and in the presence of the man and of the former proprietor, declared that she was-the owner of the laundry and that she took possession of it. She then had several hundred dollars in a bank. The consideration for the purchase was S3,000, to be paid in cash. No payment was made until the following February, when the proprietor was given eight promissory notes, each for $250, made by the plaintiff and indorsed by the man, and $761.67 in cash, . which was withdrawn from the laundry business, and a debt of $238.33 from the former proprietor to the man was discharged. The notes subsequently were paid from the profits of the business. Books of account were opened in the name of the man. In August, the man purchased real estate in his own name, to which the laundry was moved and where it was conducted in the name of the man. He and the plaintiff were married the next year. The master without a report of the evidence found that in all the transactions the man acted as the agent of the plaintiff. Held, that</p> <p>(1) The subsidiary findings of the master were not incompatible with the finding that the man was acting as the plaintiff’s agent;</p> <p>(2) It must be taken as a fact that the business was purchased by the plaintiff;</p> <p>(3) The circumstance that a part of the purchase price was furnished by the man through the discharge of the debt owed to him by the former proprietor did not cut down the effect of the main finding that the title passed to the plaintiff. |</p> <p>The master in the suit above described further found that, for eight years after the purchase of the business by the plaintiff, her husband with her acquiescence carried on the business as though it were his own, that there was no actual gift nor transfer of the business by her to him and that from time to time she claimed it as her own; that then, with the full knowledge and acquiescence of the plaintiff, he caused a Massachusetts corporation to be formed to which he gave a bill of sale of the business in his own name in return for two hundred shares of stock, one of which was given to the plaintiff, who became a director, one to a 1 nominee of his and the remaining shares to himself; that some property owned by the husband in an outside venture was included in the conveyance to the corporation and formed part of the consideration for the issue of shares, but that that property was valueless because the venture was a failure; that the husband continued to manage the business until his death- three years later; that no dividends ever were declared, although he received as profits more than $27,000 and the plaintiff received several thousand dollars. Very shortly _ after the husband’s death the plaintiff asserted her claim to the executor of his will, and within three years brought this suit. Held,, that</p> <p>(1) The identity of the shares of stock, standing in the name of the plaintiff’s husband and of his nominee, as representing what previously was her property, was established;</p> <p>(2) The circumstance that property of the husband in an outside venture, which proved valueless, was part of the consideration for the shares issued to him was of no consequence;</p> <p>(3) Since the defendant executor stood in the same position as had the plaintiff’s husband, to whom her property had been entrusted and who was in no way deceived by her conduct, the plaintiff was not estopped to assert her claim in this suit;</p> <p>(4) In the absence of any finding that the rights of any creditor of the business, either before or after the incorporation, were placed in jeopardy, the plaintiff was not estopped to assert her claim by reason of her having permitted her husband to hold himself out as the owner of the business;</p> <p>(5) It not appearing that there had been any delay on the part of the plaintiff which had caused her husband or the executor of his will to sleep on his rights, the suit was not barred by loches;</p> <p>(6) The suit was not barred by the statute of limitations;</p> <p>(7) A decree should be entered directing that the shares of stock in the corporation which had stood in the name of the husband and his nominee should be conveyed to the plaintiff, and that there should be an accounting to her for dividends received thereon.</p>

<p>Contract for breach of an agreement in writing for the manufacture by the plaintiff and sale to the defendant of pyroligneous acid. Writ dated February 5,1919.</p> <p>In the Superior Court the action was heard by Jenney, J., without a jury.</p> <p>The agreement in writing, signed by the defendant by its vice president, Allen O. Claflin, read as follows:</p> <p>“January 17th, 1918.</p> <p>“The Avery Chemical Co. hereby agrees to buy and the Chat-ham Mfg. Co. hereby agrees to sell, 500 bbls of their Pyro acid on a basis of 5c per gal for 5% acid bbls to be charged extra at price paid therefor. This price is f.o.b. Savannah steamers and goods to be paid for on the 5th of each succeeding month for goods received in preceding month and on the 25th of the succeeding month for goods shipped in the preceding month but not received before the 5th. At the option of the Chatham Mfg. Co. the amount of acid to be delivered may be increased to 2500 bbls. It is understood that acid will not be shipped that averages much under 4H%- Shipments to begin as' soon as possible.”</p> <p>On August 8, 1918, the defendant wrote to the plaintiff the following letter;. “We would ask that you kindly discontinue shipments of Pyro Acid Water until further notice.” To this the plaintiff replied as follows: “We have your favor of the 8th this morning a'sking us to discontinue shipments of Pyro Acid until further notice. This is quite a shock to us as we have gone to considerable trouble and expense and in getting up this water. We have wired you stating that we had 50 bbls already for shipment and freight room engaged therefor this week’s steamer and asking if we could not send this on, also asked you to state about when we could resume shipments. We hope to hear from you by wire during the day, and sincerely trust this stoppage of shipments is but temporary.”</p> <p>On August 13, the defendant telegraphed to the plaintiff as follows: “Impossible for us to accept Pyro Acid at this time.” To this the plaintiff replied by telegram on August 14 as follows: “Telegram reed would you recommend our selecting and storing pyro acid in anticipation shipment being resumed shortly if not could you suggest any one else using it please wire reply our expense.” The defendant on the same day telegraphed to the plaintiff as follows: “You may ship us fifty barrels you have ready on a sixty day billing basis would not recommend your storing pyroacid but regret cannot advise of other interested parties. Charge.</p> <p>Avery Chemical Company.”</p> <p>On August 15, the plaintiff wrote to the defendant the following letter:</p> <p>“We confirm various telegrams exchanged and thank you for letting us ship the 50 bbls we have made up of Pyro Acid. We understand that we can draw for the value of the bbls at sight and that the balance is to be remitted in 60 days.</p> <p>“We are naturally considerably upset at the discontinuance of the shipments of the Pyro Acid water and wonder if you would be willing to give some information as to the cause. We have worked hard in getting our plant in condition to supply this and it is unfortunate that just as we get in shape, the shipments are discontinued by you. The situation is that Mr. Claflin left a contract with us when here of about 3000 bbls of this water. We were, delayed in shipping any and took the matter up with you about June 1st when you stated we could go on and ship. We therefore naturally concluded that the contract was reinstated and that we would be able to ship the above quantity. It seems strange that in the short time between this reinstatement of contract and your telegram to cease shipments, the situation could change so radically. If it is a question of time in paying for this water we would be glad to meet you in the matter provided we can continue to draw for the value of the bbls. We supposed that at this time there was a particularly good demand for iron liquor. Is this correct?</p> <p>“By the way, we sent you a sample of iron liquor we made up and asked if you would be willing to tell us whether it was all right or not. If it is all right we might go on and make it and probably dispose of it throughout the South thus not coming in competition with you.</p> <p>“We would greatly appreciate a full letter from you in the matter if you can consistently give it to us.”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the plaintiff asked for and the trial judge refused the following rulings:</p> <p>“1. Upon all the evidence the plaintiff is entitled to recover for damages for. failure of the defendant to accept deliveries of twenty-five hundred barrels.”</p> <p>“4. The plaintiff had the right to increase the amount of deliveries to twenty-five hundred barrels up to the time which the court finds it was required to complete deliveries of the five hundred barrels.”</p> <p>The plaintiff also asked for the following rulings:</p> <p>“6. The time within which the plaintiff could elect to increase the deliveries under the contract to twenty-five hundred barrels was likewise continued and extended by the defendant’s letter of August 8, 1918, and its subsequent correspondence.</p> <p>“7. The plaintiff’s letters of August 15, 1918, November 20, 1918, and November 23, 1918, constitute an election by the plaintiff to increase the deliveries under the contract to twenty-five hundred barrels.”</p> <p>The judge made the sixth ruling with the addition that the extension was for a reasonable time thereafter. The seventh ruling the judge held to be immaterial because he found that the option, if exercised, was not exercised within a reasonable time, if the question of reasonable time was one of fact, and ruled that it was not exercised within a reasonable time, if it was a question of law.</p> <p>The judge found for the plaintiff in the sum of $863.34; and the plaintiff alleged exceptions which, after the qualification of Jenriey, J., as a justice of the Supreme Judicial Court, were allowed by Lawton, J.</p>

<p>Petition, filed in the Land Court on November 8, 1918, for the registration of the title to about twenty-six and one half acres of land at Pleasant Bay and Fourside Harbor in Chatham, occupied by the federal government as an aviation station under a lease and an agreement of sale made by the petitioner.</p> <p>The petition was heard by Davis, J. It appeared that one Nickerson owned the land at the time of his death, intestate, in 1847. After his death a portion of it was set off as dower to his widow and, through partition proceedings, the rest of it, exclusive of the rev'ersionary interests in the dower land, was divided among his six children. Thereafter one of the sons, the father of the petitioner, purchased of his brothers and sisters their interests in severalty and in 1865, after the death of the widow, purchased their interests in the dower land.</p> <p>The issues raised at the hearing related to the validity and effect of some of the deeds conveying the interests so purchased.</p> <p>The respondents are the heirs of two of the daughters of the original owner, Mehitable Bassett and Eunice Kenney. Material facts found by the judge are described in the opinion. The judge ruled that, upon the facts found by him, so far as the dower lands were concerned, title could, as matter of law, be acquired by adverse possession, and found that it had been so acquired by the petitioner. As to the title to the land conveyed upon the partition in severalty to Mehitable Bassett, the judge found that the petitioner had acquired a title thereto by adverse possession. As to the title to the land conveyed upon the partition in severalty to Eunice Kenney, the judge in substance ruled that, upon the facts found by him, her heirs were estopped to deny the petitioner’s title.</p> <p>A decree registering the petitioner’s title to the entire tract was ordered by the judge; and the respondents alleged exceptions.</p>

<p>Constitutional Law, Secrecy of grand jury proceedings. Jury and Jurors. Practice, Criminal, Grand jury proceedings, Abatement, Trial together of counts alleging distinct offences, Stay of sentence. Pleading, Criminal, Indictment, Plea. Witness. Attempt to Commit Crime. Writ of Error. Habeas Corpus.</p> <p>If an indictment is returned by a grand jury upon evidence received by them from witnesses who testified in the presence of persons whose presence at the hearing was not necessary for the grand jury to ascertain the truth relating to matters under investigation, and if the defendant objects to the indictment on those grounds before he pleads generally, the indictment must be quashed; but such an objection, raised by a petition for a writ of habeas corpus and by a writ of error after a general plea of “not guilty,” a trial, a verdict of guilty and a sentence, comes too late.</p> <p>Even constitutional rights of a defendant under indictment, if they do not affect the jurisdiction of the court over the subject matter of the indictment, must be asserted seasonably.</p> <p>The soundness of an indictment is admitted by a general plea.</p> <p>Statement by Rugg, C. J., of some instances where the presence before a grand jury, while a witness is testifying, of persons other than the witness is lawful because it is necessary in order that the grand jury may ascertain the truth as to the matter under investigation.</p> <p>There is no error in sentencing to the house of correction for thirty months one who has been found guilty on two counts of an indictment severally charging him with separate attempts to commit larceny from the person.</p> <p>It is not error to place a defendant, charged in two counts of an indictment with distinct attempts to commit larceny from the persons of different individuals, on trial upon both counts of the indictment at the same time.</p> <p>A refusal by a judge of the Superior Court to stay execution of a sentence imposed upon a defendant who had been found guilty after the trial of an indictment for crime is not subject to review either upon a petition for a writ of habeas corpus or upon a writ of error.</p> <p>The provisions of R. L. c. 220, § 3, in substance requiring that sentence must be imposed, upon conviction of a crime not punishable by death, notwithstanding the pendency of exceptions, unless the trial judge or a justice of the Supreme Judicial Court shall file a certificate that in his opinion there is reasonable doubt whether the judgment should stand, is constitutional.</p> <p>In refusing to grant a motion for a stay of execution under It. L. c. 220, § 3, the judge need not state his reasons.</p>

Indictment, found and returned on July 31, 1918, charging the defendant with perjury in that, at a hearing upon a libel for divorce brought against him by his wife, where it became and was material to the issue, whether he owned or was interested in the property situated and numbered 258 on Washington Avenue in Chelsea, he falsely testified in substance and effect that he did not own that property.

<p>Way, Private. Easement, Right of way. Equity Pleading and Practice, Bill, Decree.</p> <p>The owner of farm land bounding northerly on a public way and westerly on another farm, who was entitled to a right of way over a lane thirteen feet wide, running northerly along his westerly boundary to the public way and enclosed on its easterly and westerly sides by fences, and also to another right of way over the adjoining farm running to the public way and parallel to the enclosed lane but not expressly located by deed nor defined as to its width although shown on the surface of the ground by cart ruts, constructed a gate at the southwesterly comer of his land in the fence which was the easterly boundary of the first lane. Opposite that gate, the owner of the adjoining land constructed a bar-way in the fence which was the westerly boundary of the first lane and thus gave access across the first lane to and from the second lane. Held, that these acts warranted the inference that both of the adjoining owners understood and mutually agreed that the way should be located at the place shown by the gate and the barway.</p> <p>Where a right of way from a farm across an adjoining farm to and from a public way was given by deed without limitation or reservation and the width of the way was not defined, the easement was to the use of a way of reasonable width; and, in determining what is a reasonable width, the character and configuration of the land, the purposes for which the land and the way were used at the time of the grant, and all the circumstances attending the grant are to be considered.</p> <p>Where the farms of two adjoining owners were bounded northerly on a public way and the owner of the easterly farm was entitled to a right of way, created by deed in 1887 without limitation or restriction, over the westerly farm and defined by conduct of the owners on the surface of the land as running over land which sloped sharply toward the east, southerly from the public way and parallel to the westerly boundary of the first farm to a point opposite its southwesterly comer, then turning nearly at a right angle and running easterly across a lane to that farm, a barway ten and eighteen one hundredths feet in width, erected by the owner of the westerly farm to give access to and from the way, properly may be found, in a suit to enjoin its maintenance as an obstruction to the right of way, not to be of sufficient width.</p> <p>Although, in a suit in equity to enjoin the maintenance by the defendant of a bar-way only ten and eighteen one hundredths feet wide in a fence at the point where the plaintiff had access to a right of way to which he was entitled over land of the defendant, the prayers of the bill do not specifically include a 'request that a proper minimum width for the barway be determined, if, upon evidence warranting it, a finding is made by the trial judge that the width of the way should not be less than fifteen feet, it is proper to include in the final decree an order .that the opening in the defendant’s fence should not be less than that width.</p>

<p>Contract, Building contract. Waiver. Practice, Civil, Requests and rulings, Finding by trial judge.</p> <p>Where an action by a building contractor upon a contract in writing for the construction of a building for the defendant was heard by a judge without a jury upon an auditor’s report and evidence both oral and documentary and the judge found that a requirement of the contract, that final payment should be made only upon certificate of the architect, was waived by the parties and found for the plaintiff, refusing to grant rulings, asked for by the defendant, that on all • the evidence he should find for the defendant, that there was no evidence of any waiver of the contract by either party, and that the plaintiff, having failed to furnish an architect’s certificate that the contract had been completed, could not recover, exceptions by the defendant which do not include a report of all the evidence must be overruled.</p> <p>At the hearing of the action above described, the defendant contended that certain mahogany furnished by the plaintiff did not satisfy the requirements of samples furnished by the plaintiff, and the judge so found; but he also found that the defects in the mahogany were remedied to the satisfaction of the defendant, and refused to grant a request by the defendant for a ruling that, because the mahogany was not in accordance with the sample, the plaintiff could not recover, and the defendant alleged exceptions. Held, that, in the absence of a report of all the evidence, the exceptions must be overruled.</p> <p>At the hearing of the action above described, the defendant asked for a ruling that, the plaintiff having admitted that he did not furnish material according to sample, the burden was on him to show that the defendant had not been damaged. The judge stated that he adopted the ruling requested in the sense that the burden was on the plaintiff to show that he substantially completed the contract. Held, that the manner in which the request was dealt with was correct.</p> <p>At the hearing of the action above described, it appeared that there was a delay in the completion of the contract beyond the time permitted by its provisions, and the judge found that it did not appear that the delay was due to any failure on the plaintiff’s part to figure the size and “ determination” of material from the plan and specifications, and refused to give a ruling, asked for by the defendant, that the defendant was "not liable for any delays occasioned by the plaintiff in its factory, as the size and determination of all material could have been figured from the plan and specifications.” Held, that the refusal of the ruling was proper.</p> <p>A judge hearing an action without a jury is not required to grant a request for a finding of fact.</p> <p>At the hearing of the case above described, it appeared that specifications, which were a part of the contract, required that the building should be ready for occupancy by October 1; that the contract required that, if the plaintiff was delayed by conduct of the defendant, of his architect, or of any other contractor employed by the defendant on the work, the time for completion should be extended accordingly but not unless the plaintiff should make claim to the architect therefor within forty-eight hours after the delay; that the defendant should furnish all labor and material essential to the conduct of the work not included in the contract with the plaintiff and that, -in the event of failure by him so to do . resulting in loss to the plaintiff, he would reimburse the plaintiff for such loss. The judge found that the provision of the contract relating to the presentation by the plaintiff to the architect of a claim for an extension of time was waived by the parties, and that the defendant did not so furnish all labor and materials essential to the conduct of the plaintiff’s work as not to delay its progress, and assessed damages therefor. The defendant asked for a ruling that, “ The contract being silent as to the length of time in which the work covered by the contract was to be completed, the plaintiff cannot recover damages on account of delay caused by other contractors.” The request was refused, and the defendant excepted. Held, that the exception to the refusal to rule as requested must be overruled.</p>

<p> Payment. Bills and Notes. </p> <p>A post-dated check, given by a merchant to the seller of certain goods, with a statement of a further balance due, in order to gain possession of the goods, which were being held by a carrier under orders of the seller until a sight draft for the purchase price was paid, is not as a matter of law a payment, and, upon the check not being paid, the seller may bring an action for the price of the goods sold and need not sue upon the check as a promissory note.</p> <p>An instrument, given by a purchaser of goods to the seller with two post-dated checks and reciting that the seller had received $1,000 from the purchaser “on account. Balance to be paid in sixty days. Total $2000 70/100; balance $1000 70/100,” is not a promissory note.</p>

<p>Contract, In writing. Evidence, Extrinsic affecting writings.</p> <p>An order in writing for goods, signed by the purchaser and containing provisions that no goods should be returned without permission of the seller, that no agreements other than those written on the order would be recognized and that verbal agreements with the salesman would not be recognized, is complete and free from ambiguity; and if, in an action by the seller against the purchaser for the price of such goods, the defendant admits their receipt and that the price stated is correct, a verdict may be ordered for the plaintiff although it appears that, at the time of the signing of the order, the defendant and a salesman for the plaintiff had some conversation which led the salesman to make a memorandum on the order requesting the plaintiff to advise the defendant whether an exchange of certain goods, that formerly had been purchased of the plaintiff and then were held by the defendant in his store, could be made for the goods described in the order.</p>

<p>Bastardy. Pleading, Criminal, Indictment. Superior Court. Words, "May.”</p> <p>The Superior Court has jurisdiction under St. 1913, c. 563, § 1, to proceed by indictment against one who gets a woman with child, not being her husband.</p>

<p>Workmen’s Compensation Act, Review.</p> <p>Where, in proceedings under the workmen’s compensation act, there has been a hearing by a committee of arbitration under St. 1911, c. 751, Part III, § 7, as amended by St. 1912, c. 571, § 12, and the committee has made an award of compensation by weekly payments and no claim for a review of their findings has been filed, upon a claim under St. 1911, c. 571, Part III, § 12, as amended by St. 1914, c. 708, § 11, for a review of the weekly payment, the questions, whether the employee received his injury in the course of his employment, and whether, when injured, he was an employee of the person insured, are not open.</p>

<p>Equitable Restriction. Equity Jurisdiction, To enjoin violation of equitable restriction, To enjoin violation of municipal ordinance. Nuisance. Municipal Corporations, By-laws and ordinances.</p> <p>In a suit in equity to enjoin the defendant from violating an equitable restriction, the following facts appeared: The plaintiff and the defendant owned adjoining lots, acquired by mesne conveyances from a common grantor and subject to a restriction "that neither the grantee nor his heirs or assigns shall carry on any trade or business upon said lot that shall be in the nature of a nuisance to the abutting owners or neighborhood.” For some years the defendant carried on a contracting business, beginning in 1908 and gradually increasing, and maintained a stable upon the premises, which use of the land was a nuisance to the plaintiff. The plaintiff had not acquiesced in such use of the premises nor given the defendant any reason to believe that he would be satisfied with it. The stable was destroyed by fire in 1915, and the plaintiff notified the defendant in substance that, if any attempt were made by him to resume the former business on the premises, or otherwise to violate the terms of the restriction, it was the .plaintiff’s intention to seek an injunction. The defendant replied that he intended to reconstruct the stable and to carry on business as before, and procured a municipal license to build and use a stable for fifty horses upon the premises. The plaintiff instituted his suit in February, 1916, and it was referred to a master. On March 25, 1916, the defendant’s stable was completed and occupied. The hearings before the master began on March 27 and ended on June 13,1916. The master filed a report on March 6,1918, in which he found in substance, that the evidence upon the question, whether the use of the stable was “in the nature of a nuisance,” was “not very complete nor very satisfactory,” that “it could hardly be otherwise,” and that he could not see “how any one can tell how this will be until a fair trial of the new arrangements is given.” Held, that</p> <p>(1) The plaintiff was not prevented from maintaining the suit by loches, waiver or acquiescence;</p> <p>(2) The negative findings of the master upon the question whether the defendant’s use of the premises was a nuisance required that the bill be dismissed without prejudice and without costs.</p> <p>An owner of land cannot maintain a suit in equity to enjoin the erection of a building upon adjoining land which is in violation of a municipal ordinance if such structure is not in itself noxious nor unusually dangerous nor in violation of the private rights of the plaintiff.</p>

<p>Bills and Notes, Payment of check stopped by drawer. Contract, Construction, Validity. Negligence, Of bank, Contract avoiding results of. Bank. Words, “Inadvertence or accident.”</p> <p>The drawer of a check retains the right to countermand its payment at any time before it is paid or is certified and delivered to a bona fide holder for value; and, in the absence of an express contract limiting its implied obligation to the drawer, if a bank upon which the check is drawn pays the check after receiving an order to stop its payment, it does so at its peril.</p> <p>The drawer of a check gave to the bank upon which it was drawn an order to stop its payment and, at the same time and at the request of the bank, signed, without a seal, an agreement, printed on a card, that he would hold the bank harmless for the amount of the check “ and for all expenses and costs incurred by it on account of refusing payment of” the check, and further, that he would not hold the bank liable “on account of payment contrary to this request if same occur through inadvertence or accident.” Upon the back of the card was a printed statement that the bank received the request "with the understanding and upon the express condition” that it would “use the best methods known to it to prevent oversight and accident,” but that it would “not be in any way liable for its act should said check be paid by it in the course of its business.” The day following the receipt of the notice to stop payment, the check was presented to the bank and “in a manner which” the bank’s bookkeeper “could not explain, it being the last day of the month, he being busy with making up accounts, the check got through” and was paid, resulting in an overdraft of the drawer’s account. In an action by the bank against the drawer for the amount of the overdraft, a jury, in answer to a special question, found that the bank was negligent in failing to stop payment of the check. Held, that</p> <p>(1) The meaning of the agreement was that the bank should be exonerated from liability to the drawer if, through the kind of negligence above described, it paid the check after receiving the notice to stop payment;</p> <p>(2) The agreement was not contrary to public policy and was valid.</p>

<p> Railroad. Easement. </p> <p>The provisions of Sts.. 1861, c. 100; 1874, c. 372, § 107; Pub. Sts. c. 112, § 215; R. L. c. Ill, § 271; St. 1906, c. 463, Part II, § 80, prevent the acquiring, by the owner of land adjoining a railroad location, of a title by adverse possession to the whole or to any part of the location or to an easement therein of support for structures on the adjoining owner’s land.</p>

Tort for personal injuries resulting from a fall upon ice alleged to have been caused to accumulate on a sidewalk, abutting on premises of the defendant on Prescott Street in that part of Boston called East Boston, by a broken spout or leader on the defendant’s house. Writ dated February 12, 1917. In the Superior Court the action was tried before Morton, J. Material evidence and exceptions saved by the defendant are described in the opinion.

Appeal under the workmen’s compensation act from a decision of the Industrial Accident Board, entered upon a petition under St. 1911, c. 751, Part III, § 12, as amended by St. 1914, c. 708, § 11, affirming and adopting findings and rulings of a single member of the board that John E. Barry, who, when in the employ of the Cape Arm Granite Company as a water boy and a tool carrier in its granite quarry and fourteen years of age, had suffered injuries which crushed his left…

<p>Homicide. Practice, Criminal, Election between counts. Pleading, Criminal, Indictment. Evidence, Confession.</p> <p>An indictment for minder was in two counts, each count charging the murder of a different individual. Upon motion of the defendant after arraignment and before trial that the district attorney be required to elect on which count the government would go to trial, it appeared that the facts, circumstances and testimony were relevant to prove that both murders were committed by the defendant at substantially the same time with a design and purpose to destroy evidence of the defendant’s commission of the crime of larceny at that time. The motion was denied. Held, that the defendant had no just complaint because of the denial of his motion.</p> <p>Upon the trial of an indictment for murder,it appeared in evidence that the defend-, ant when arrested was told by the police officer having him in custody that any statement he made would be used against him, and that later in the day in a police station in another city the defendant, without again being warned, made a confession to the same officer in the presence of other officers. This confession was admitted in evidence. Held, that</p> <p>(1) The facts that the defendant was in custody, and that he was questioned by the officer in the presence of other officers and at the police station, did not conclusively prove that the confession was procured by inducements engendering hope or fear;</p> <p>(2) Upon the whole evidence no facts were disclosed which justified a contention of the defendant that his confession was not made “ freely, voluntarily and without compulsion or inducement of any sort.”</p> <p>A confession made to a person in authority, even though it be induced by the solicitation and inquiry of such person, is prima facie voluntary and the person ■ objecting to its admission in evidence must show that it was made under such pressure of hope or fear as to raise a doubt of its accuracy.</p>

<p>Tort for personal injuries resulting from the falling of an iron, fence alleged to have been left in a dangerous condition by the-defendant while it was being taken down and removed. Writ, dated March 1, 1918.</p> <p>In the Superior Court the case was tried before Hitchcock, J, Material evidence and exceptions saved by the plaintiff are described in the- opinion. There was a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, Modification, Performance and breach.</p> <p>At the trial in the Municipal Court of the City of Boston of an action of contract to recover the contract price of a quantity of sauerkraut, there was evidence that, by a contract in writing dated February 11 of a certain year, the plaintiff agreed to sell and the defendant to pinchase one hundred barrels of sauerkraut “F. O. B. Phelps,” “to be ordered out” by the defendant between the next October 1 and November 30; that the kraut was ready for delivery, but was not ordered out and was not delivered; that on the next January 2, the kraut was barrelled and placed in storage by the plaintiff for the defendant’s account and the defendant was notified; that on January 4 the defendant wrote the plaintiff requesting that no shipment of the kraut be made and to “Hold goods in your storage until we advise you further,” and that the plaintiff on January 6 wrote the defendant agreeing to do so. On March 15, in reply to the plaintiff’s request for information as to when the kraut would be ordered out, the defendant wrote the plaintiff that it could not use the kraut and to make no shipment. The trial judge found “that title passed” and found for the plaintiff. Held, that</p> <p>(1) The evidence warranted the findings;</p> <p>(2) Although, under the contract, title would not have passed until the sauerkraut was delivered “F. O. B. Phelps,” the proposal of the defendant made on January 4, that the plaintiff should “Hold goods in your storage until we advise you further” and the acceptance by the plaintiff of this proposal on January 6, operated as waivers of the obligation of the defendant to order out, and of the plaintiff to make delivery “F. O. B. Phelps” as a condition of the passing of title;</p> <p>(3) The defendant was obligated under St. 1908, c. 237, § 51, to pay the contract price and the storage and insurance charges.</p>

<p>Tort for personal injuries resulting to the plaintiff, while a passenger on an open street car of the defendant, from the dripping upon her of a chemical solution which had been used in extinguishing a fire on the overhead structure of the defendant by firemen of the city of Boston fire department. Writ dated June 16,1916.</p> <p>In the Superior Court the action was tried before J.F. Brown, J. The material evidence is described in the opinion. The jury returned a verdict for the plaintiff. The judge refused to accept it, ordered a verdict for the defendant and reported the case for determination by this court with the stipulation that, if the action should have been submitted to the jury, judgment in favor of the plaintiff should be entered in the sum of $175 with interest and costs; otherwise, that the verdict for the defendant was to stand.</p>

<p>Contract upon a declaration in two counts, the first count being upon an account annexed for $875.50 for seventy-two dozen wash suits, and the second count being for damages for breach of a contract made on July 13, 1918, whereby the plaintiffs agreed to sell and the defendant to purchase one hundred and fifty-two dozen wash suits. Writ dated March 15, 1919.</p> <p>In the Superior Court the case was tried before Morton, J. The material evidence is described in the opinion. At the conclusion of the plaintiffs’ evidence, the judge, upon motion of the defendant, for the reason quoted in the opinion, ruled that there was no binding contract between the parties and ordered a verdict for the defendant; and at the request of the parties reported the case for determination by this court, judgment to be entered for the defendant if his ruling was right; and, if his ruling was wrong, a new trial to be ordered.</p>

<p>Evidence, Declaration by deceased person. Practice, Civil, Preliminary examinar tian by judge as to evidence of declaration by deceased person.</p> <p>At the trial of issues relating to whether a will was executed by a testator of sound mind or was procured to be executed by undue influence, evidence was offered by the appellant of a declaration by a deceased person of a statement made to him by the testator, which declaration would have been admissible in evidence under R. L. c. 175, § 66, if the judge had found that it was made in good faith and upon the personal knowledge of the declarant. At the preliminary hearing by the judge, required by the statute, no evidence was produced although the judge suggested that it should be, and the judge, while stating that he was willing to assume that the deceased person made the declaration, also stated, “Beyond that I am not satisfied,” and excluded the evidence subject to an exception by the appellant. Held, that, because the judge did not find that the statement of the deceased person was made in good faith, and his action could not be said to be unjustifiable, the exception must be overruled.</p>

<p>Tort for personal injuries received by the plaintiff while in the employ of the defendant, the declaration as amended containing four counts, of which only the fourth, based on the federal employers’ liability act, (U. S. Sts. at Large, c. 149, as amended by U. S. St. 1910, c. 143,) was submitted to the jury. Writ dated December 14, 1917.</p> <p>In the Superior Court the action was tried before Keating, J. The material evidence and rulings of the judge to which the defendant excepted are described in the opinion. There was a verdict for the plaintiff in the sum of $5,250; and the defendant alleged exceptions.</p>

Complaint, made and sworn to in the Municipal Court of the City of Boston on May 28, 1919, under St. 1913, c. 563> charging that the defendant, not being the husband of the complainant, did get her with child on January 13, 1919. ■ In the Superior Court, the complaint was tried before J. F. Brown, J. Material evidence and exceptions saved by the defendant are described in the opinion.

Two actions of tort, the second action being for personal injuries alleged to have been received by the plaintiff and caused by a defective condition of a stairway used in common by the tenants in a house of the defendant where the plaintiff and her husband lived, and the first action being by the husband of the plaintiffs in the second action for consequential damages. Writs dated May 16, 1916.

<p>Evidence, Pleadings.</p> <p>Where, in an action of contract, the plaintiff, after an auditor to whom the action was referred had filed a report, amended his declaration so that he claimed an amount more than $2,400 larger than that claimed in the original declaration and the action was recommitted to the auditor who filed a supplemental report, it is not a violation of B. L. c. 173, § 85, for the defendant’s counsel, in cross-examination of the plaintiff at a subsequent trial of the action before a jury, while holding the pleadings in his hand to inquire when the plaintiff first had made the claim which was the basis of his action and whether he had not prepared and given to his counsel a statement in which he fixed the amount claimed at a sum considerably smaller than that to which he had testified.</p>

<p>No error appears in the denial of requests for rulings where there is nothing stated in the record showing what, if anything, the subject matter of the requests have to do with the issues involved in the trial, or showing or tending to show their pertinency, or that the party making them was injured by their refusal.</p> <p>A request for a ruling based upon an assumption of fact contrary to the finding of the trial judge is properly denied.</p>

<p>Pleading, Criminal, Complaint. Riot.</p> <p>Allegations in a complaint, that the defendants “did unlawfully, riotously and tumultuously assemble with thirty or more persons, and while so unlawfully assembled as aforesaid, with a certain weapon dangerous to life, to wit, a knife, did . . . wound ... a police officer of said city of Boston, lawfully engaged in dispersing and suppressing said unlawful assembly,” fully and sufficiently charge the defendants with the common law offence of a riot.</p> <p>The allegation of assault in the complaint above described is merely incidental to and a part of the charge of riot, but is not an essential part of that offence.</p> <p>A parade on a public street of the city of Boston without a permit required by the board of street commissioners is unlawful,</p> <p>Where, at the trial of a complaint charging the common law offence of a riot, there is evidence upon which it can be found that the defendants participated in a common purpose by force and violence to march and parade on a public street without permission and in violation of law, that during the progress of the parade the paradera were ordered to disperse and that violence ensued, a finding is warranted that the defendants were guilty of a riot.</p> <p>In order that the defendants above described should be found guilty of the common law offence of a riot, it is not necessary that all of them should commit a physical act of violence; but it is sufficient to warrant conviction if the defendants are found to have been acting in concert with the others for the accomplishment of a common unlawful purpose and were aiding and abetting by their presence.</p> <p>Persons present at a riot and consenting to the unlawful acts and in a position where they may render aid and assistance may be found guilty as principals.</p> <p>Where, at the trial of the complaint above described, which alleged that a police officer was stabbed with a knife, there was evidence that the officer was stabbed but no direct evidence of the character of the weapon used, it was held, that a finding that he was stabbed with a knife was not unwarranted.</p> <p>Upon a complaint charging the common law offence of a riot and containing an allegation that the defendants “while unlawfully assembled” assaulted a police officer with a knife, it is not necessary under R. L. c. 218, §§ 21, 34, 35, to show that the officer was stabbed by one of the defendants or that he was stabbed at all.</p> <p>Upon a complaint charging an offence which is a riot at common law, the offence exists independently of statute, and it is not necessary to prove that the participants were ordered to disperse by the officials named in R.- L. c. 211, § 1.</p>

<p>Tort for injury to a motor car, owned by the plaintiff and operated by his chauffeur, resulting from a collision with a street car of the defendant near the junction of Main Street and Sudbury Road in Concord. Writ dated October 1, 1913.</p> <p>In the Superior Court the action was tried before Hitchcock, J. Material evidence is described in the opinion. At the close of the evidence the defendant moved that the judge order a verdict for the defendant. The motion was denied. The defendant then requested the judge to give to the jury, among other instructions, the following:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. On all the evidence the person operating the automobile was not in the exercise of due care.”</p> <p>"4. There is no evidence from which the jury can find any negligence on the part of either the motorman or the conductor of the street car.</p> <p>"5. If the jury find that the automobile crossed ór was crossing the street car track directly in front of the street car while the street car was moving then the person operating the automobile was negligent as a matter of law and the plaintiff is not entitled to recover.”</p> <p>“7. If the jury find that the automobile crossed or was crossing the street car track immediately in front of the street car while the street car was moving the jury must disregard any evidence that the person operating the automobile looked and did not see a street car approaching for he must be regarded as a matter of law under these circumstances to have looked carelessly and so was in the same situation as if he had not looked at all and is guilty of negligence which contributed to the accident and prevents the plaintiff from recovering.”</p> <p>These rulings the judge refused to give.</p> <p>The judge instructed the jury in part as follows:</p> <p>"It is claimed by the plaintiff as his chauffeur was coming along Main Street as he claims in a reasonably proper and careful manner that he did properly attempt to cross and did cross the street railway track where it turned to go up Sudbury Road, and that while he was doing that the car came upon the automobile and struck him and caused the damage that is claimed to have accrued to the automobile.</p> <p>“On the other hand the plaintiff says that is due to carelessness in the operation of the street car and that the chauffeur in operating it was operating it in a proper maimer and as a part of the operation and a part of the so called negligent operation of the street car it is claimed by the plaintiff that at the last moment right at the time almost of the impact between the two, that the motorman suddenly put on a blinding headlight and that so dazzled and affected the chauffeur in operating the automobile that he was not able at that time properly to get his car out of the way so but what an accident happened.</p> <p>“Now, there is no negligence in having this high powered searchlight upon the electric car . . . but the claim is made that in operating that headlight it was done in a careless and negligent manner. That is, if the headlight had been shining all the way upon the street there that would not be negligence even though that might blind the eyes as you are looking toward it, but the claim was made that it was turned on by the motorman right at the accident and in such a way and under such circumstances as to have the effect upon the chauffeur in operating the automobile and in such a way as to constitute a negligent and careless act on the part of the motorman in turning on the light when he did. That is one of the circumstances in the case and to be considered, and the question finally comes upon the two propositions, first, was there any carelessness or negligence on the part of the motorman of the car which brought about the cause of the injury to the property of the plaintiff.”</p> <p>At the close of the charge, the defendant saved exceptions to such portions of it as in substance instructed the jury that they might consider the act of the motorman in turning on the headlight as negligence.</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,000; and the defendant alleged exceptions. •</p>

<p>Workmen’s Compensation Act, Dependency.</p> <p>A husband and wife are not living together within the meaning of the workmen’s compensation act so that the wife may be conclusively presumed to be wholly dependent upon her husband, where it appears that after the marriage and until his death the husband continued to live with his mother and the wife with her mother, although, from the time of the marriage, the husband contributed to his wife’s support and visited her in her home twice a week, usually staying over night, when they occupied the same room.</p>

<p>Contract upon a promissory note for $3,000, made by the defendants and payable to one Bowen and the plaintiff, a lawyer, and indorsed by Bowen to the plaintiff. Writ dated August 8, 1918.</p> <p>In the Superior Court the action was tried before Hammond, J.</p> <p>The agreement in writing, referred to in the opinion, excepting-the in testimonium clause and the signatures, was as follows:</p> <p>“Know all men by these presents, That we, Charles H. Bowen and Samuel C. Bennett, jointly and individually as our respective interests may appear, in consideration of Four Thousand (4000) Dollars paid by Thomson & Kelley of Boston, Mass., the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer and deliver unto the said Thomson & Kelley the following goods and chattels, namely,</p> <p>“All brick of every name, nature and description located at Makonikey, Martha’s Vineyard, Mass., on property formerly occupied by the Kaolin & Clay Products Company and the Clay Products Company.</p> <p>“To have and to hold all and singular the said goods and chattels to the said Thomson & Kelley and their executors, administrators, and assigns, to their own use and behoof forever.</p> <p>“And we hereby covenant with the grantee that we are the lawful owner of the said goods, and chattels; that they are free from all incumbrances; that we have good right to sell the same as aforesaid; and that we will warrant and defend the same against the lawful claims and demands of all persons. . . .”</p> <p>The amendment to the defendants’ answer added the following: “For further answer the defendants say that on July 1, 1918, the plaintiffs sold to the defendants a certain lot of brick located at Makonikey, Martha’s Vineyard; that said plaintiffs represented to the defendants that said brick were of specific grade, namely, face brick and fire brick and that said brick were merchantable; that relying upon the foregoing representation and express and implied warranties the defendants purchased the said brick paying therefor the sum of $4000.00; which payment' was by cash of one thousand dollars and by note of $3000.00, — which note the plaintiffs are now seeking to enforce as set forth in the Declaration in this action; that the bricks sold were not face brick, building brick, or fire bricks, as represented, and were not merchantable; that said brick is of little value; wherefore the defendants seek to recoup against the plaintiffs the loss and damage suffered by them; the said plaintiff being the payee of said note and not an innocent holder thereof.”</p> <p>The defendants introduced evidence tending to show that the plaintiff and Bowen, previous to the execution of the agreement in writing above described, had handed to the defendants a memorandum on which the brick were described as “building or face brick,” and “fire brick,” and that the brick were not of that quality.</p> <p>The colloquy between the judge and the counsel for the defendants, referred to in the opinion, was as follows:</p> <p>The plaintiff’s counsel, in redirect-examination of Bowen, had asked “Did you intend to mislead the defendant?” The defendants’ counsel interposed, “Wait a minute.” The judge asked, “Do you claim that he did?” The defendants’ counsel replied, “I am going to ask the court’s permission to amend the pleadings. One of them would be about the warranties.” The judge then stated, “You claim misrepresentation in your pleadings.” The defendants’ counsel replied, “I don’t think I ought to be asked to say that openly until the case is in. Whether I claim that or not is for the jury to consider.” The judge then ruled, “He may ask him if he intended to mislead, if you are going to claim he did.” The defendants’ counsel then said, “The Supreme Court ruled — may I read it? — ‘Whether statements are made of the speaker’s knowledge within the requirements of this test, is a question for the jury.’ That has been decided in 127 Mass. It seems to me I ought not to be asked point blank what I personally claim is the whole transaction. I am only counsel, and the jury is to pass upon that.” The judge replied, “The pleadings here indicate you claim there was a misrepresentation. What I am trying to get at is whether you claim that or something else.” The defendants’ counsel replied, “I intend to amend my pleadings to claim that the goods were warranted up to a certain standard and were not up to that standard.”</p> <p>The judge then stated, “Now if you want to claim breach of a warranty, is that it? What I am getting at is, do you want to withdraw the claim that there was a single misrepresentation?” To this the defendants’ counsel replied, “As I say, that is for the jury to say, not for me.” The judge rejoined, “No, it is for you to say whether you make the claim or not. It is for the jury to say whether it is justified. Do you make the claim? ” The defendants’ counsel replied, “Not as the pleadings stand now, but I want to amend the pleadings. I want to amend by adding — ” and the judge interposed, "If you simply want to amend by adding, you [addressing the plaintiff’s counsel] may put the question, . . . whether he intended to mislead.”</p> <p>It was stated in the record, “The defendants waived all the defences set up in the answer except that of misrepresentation as to the quality of the bricks sold, and that the consideration, if there was any, failed.”</p> <p>Other material facts are described in the opinion.</p> <p>At the close of the evidence, by order of the judge, the jury found for the plaintiff in the sum of $3,134.06; and the defendants alleged exceptions.</p>

<p>Negligence, Railroad. Practice, Civil, Requests, rulings and instructions, Judge’s charge.</p> <p>At the trial of an action against a railroad corporation for personal injuries caused by a collision between a motor car driven by the plaintiff and a locomotive of the defendant at a grade crossing of the railroad with a highway, there was evidence warranting a finding that negligence of the plaintiff contributed to cause the collision, and also that it was caused by neglect of the defendant to give the signals required by St. 1906, c. 463, Part II, § 245. The plaintiff asked that the jury be instructed that, “if the defendant’s servants neglected to give the signals required by statute to be given at the railroad crossing, the jury might infer that this neglect contributed to the said injuries.” The request was refused, and the jury were instructed that, if they found that the statutory signals were not given, that fact was evidence of negligence, and, if that negligence contributed to the injury, the plaintiff had proved his case so far as the defendant’s negligence was concerned. Held, that there was no error in the refusal to instruct the jury as requested nor in the instruction given.</p>

<p>Practice, Civil, Parties, Amendment. Attachment, Dissolution by bond.</p> <p>Where, in an action of contract begun by trustee process against two non-residents as copartners, it appeared that the defendants were not served personally with process but that property in this State had been attached by the trustee process as the property of the defendants, and that a bond had been given by them under R. L. c. 167, § 116, as amended by Sts. 1905, c. 110; 1906, c. 187, to release the attachment, the giving of the bond operated as a general appearance by the defendants, and the action should not be dismissed although, no service was made upon them.</p> <p>In an action of contract against two non-resident individuals as copartners, who appeared generally, the allowance of an amendment joining a third copartner as a party defendant, who is not served with process and who does not appear, does not affect the plaintiff's right to recover judgment against the defendants who had appeared.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 10, 1919, against the Brockton Savings Bank and one Merton F. Ellis, in which the plaintiff alleged in substance that the plaintiff’s husband, Henry H. Ryder, had made three mortgages of real estate on Main Street in Brockton to the defendant bank and that she had joined therein for release of her dower and homestead rights and other rights by statute; that at some time after the giving of those mortgages the plaintiff and her husband became estranged and, while they were so estranged, the husband gave to the defendant Ellis a mortgage of the same premises for $5,000, in which she did not join; that on December 22,1917, the defendant Ellis entered upon the premises for purposes of foreclosure and that on January 18, 1918,, the premises were sold at a sale under the power of sale in his mortgages for $8,000, subject to the mortgages to the defendant bank, and that he became the purchaser; that a default of the conditions of the mortgages to the defendant bank had occurred, and that the bank had begun foreclosure proceedings. Material prayers of the bill were that the defendant bank be restrained from proceeding with the foreclosure sale; that the defendant Ellis be required to account for the income and profits from the property and therefrom to satisfy the conditions of the mortgages to the defendant bank; that the “defendant Ellis,—if it be found that he refrained from paying the instalment of interest now in default with said defendant bank for the purpose of causing the proposed foreclosure, in order, fraudulently, to deprive the plaintiff of her dower right, and such other rights as she may have in the premises,—be directed and ordered to convey his equity of redemption in the premises to the plaintiff, or” that the "defendant Ellis,—if it be found that he refrained from paying the instalment of interest now in default with said defendant bank, for the purpose of causing the proposed foreclosure, in order, fraudulently, to deprive the plaintiff of her dower right, and such other rights as she may have in the premises,—be directed and ordered to relinquish to the plaintiff possession and management of said premises; and that if it becomes necessary to place another mortgage or mortgages to replace those now held by the defendant bank, that the defendant Ellis be directed and ordered to transfer his title to said property to the plaintiff, temporarily, for the purpose of replacing said mortgages.”</p> <p>The bill was referred to a master. Pending hearings before the master, the plaintiff was allowed to amend her bill to add allegations to the effect that the defendant Ellis’s course of conduct in the premises had been to carry out an intention on his part, conceived before he took the mortgage from the plaintiff’s husband, to get possession of the property as his own, and that, when he began foreclosure proceedings on his mortgage, no breach of the mortgage had occurred. The amendment also added prayers seeking in effect that there should be an accounting between the defendant Ellis and the plaintiff’s husband, and that, upon payment to Ellis of the amount thus found due, his mortgage should be discharged.</p> <p>The master filed a report, and both the plaintiff and the defendant Ellis filed objections and exceptions thereto. Material facts found by the master are described in the opinion. The suit then was heard by Crosby, J., by whose order an interlocutory decree was entered overruling the plaintiff’s exceptions to the master’s report and sustaining some of the defendants’ exceptions, which are not now material. On the matter of a final decree, the single justice filed the following memorandum:</p> <p>“The plaintiff’s husband, Henry H. Ryder, gave to the defendant bank three mortgages, described in the bill, conveying a certain parcel of land in Brockton. He subsequently executed to the defendant Ellis a fourth mortgage upon the same land. The plaintiff joined in the three mortgages to the bank and executed each of them in release of her dower interest in the premises conveyed. Upon the findings of the master, it appears that, at the time when the bank began proceedings for the foreclosure of the three mortgages held by it, there was a breach of the conditions of the mortgages and that the bank is legally entitled to foreclose. The master finds, and it is agreed, that the plaintiff did not join in the fourth mortgage given by her husband to the defendant Ellis but that the property therein described was conveyed subject to the plaintiff’s right of dower. I am of opinion and rule that, as the plaintiff did not release her right of dower in the mortgage given by her husband to the defendant Ellis, her inchoate right of dower remains unimpaired and that she is not entitled to maintain the bill against Ellis. I also rule that, if the bill is to be treated in part as a bill to redeem from the mortgages held by the bank, the plaintiff could maintain a bill for that purpose if she had paid or tendered to the bank the amounts severally due and payable on the mortgages and had tendered the performance of the other conditions contained therein; but, as she has neither paid nor tendered such amounts nor offered in the bill to make such payments, she is precluded from maintaining the bill against the bank. It follows that a final decree is to be entered dismissing the bill as-amended as to each defendant, without costs.”</p> <p>Thereafter, the plaintiff was permitted further to amend her bill by adding allegations that she was ready and willing and offered to pay what was due, both upon the mortgage held by the defendant bank and upon the mortgage given by her husband to the defendant Ellis, and by adding prayers that she be allowed to pay such sums and to redeem the mortgages.</p> <p>The single justice then reported the suit to the full court for determination upon the pleadings, as amended, the master’s report, the exceptions thereto and the memorandum and order for a decree.</p>

<p>Practice, Civil, New trial, Findings of fact by judge. Words, “ Memorandum of Decision,” "Material,” “Artifice.”</p> <p>A judge in denying a motion for a new trial of an action at law need not make any findings of fact.</p> <p>Upon exceptions in an action at law, where it appeared that, in denying a motion for a new trial, the judge had filed a paper entitled a “Memorandum of Decision,” it was stated that the paper was called so improperly.</p> <p>While a paper, entitled a "Memorandum of Decision,” filed by a judge accompanying an order denying a motion for a new trial of an action at law, ordinarily would form no part of the record upon exceptions taken to the. order, where the paper expressly was. made a part of the bill of exceptions, its contents were held to be before this court in every material aspect.</p> <p>Statement, by Rugg, C. J., of the controlling principles of law respecting the granting of motions for new trials on the ground of newly discovered evidence.</p> <p>The determination of a motion for a new trial of an action at law on the ground of newly discovered evidence rests within the sound judicial discretion of the trial judge.</p> <p>At the trial of an action against a street railway company for personal injuries resulting from a foreign substance entering the plaintiff’s eye coincidentally with an explosion upon or under a street car of the defendant, the plaintiff contended that the foreign substance was metal that blew out from a fuse box on the car, and the defendant contended that it was a bullet from a cartridge placed upon the track by a third person. The jury found for the plaintiff. The defendant moved for a new trial on the ground of newly discovered evidence which would . tend to prove that, within forty-eight hours after the accident, a Roentgen ray photograph of the plaintiff’s eye was taken, which revealed that the foreign substance was a bullet and not part of a fuse box. The motion was extensively heard twice and was considered at length by the trial judge, who denied it mainly on the grounds, that he did not place reliance upon the testimony of a witness, who first called the defendant’s attention to the Roentgen ray photographs and who had taken the photographs, that he was not' satisfied that the photographic plates were sufficiently identified as pictures of the plaintiff’s eye and that the testimony of the witness was not of sufficient weight to lead his mind to the conclusion that it would have an effect to lead the jury to a verdict more favorable to the defendant in case a new trial was granted. ■ There was evidence warranting the conclusions of the judge. Held, that the determination of these facts by the judge was not subject to revision, and that his denial of the motion was proper.</p> <p>In denying the motion for a new trial in the circumstances above described, the judge filed a statement of further findings, among which was a finding that the evidence was not newly discovered, that the evidence was cumulative, and that "artifice was practised” in the production of the photographic plates, which findings were made without supporting evidence; and from the statement it appeared that there were other inconsistencies in the findings of the judge; but it was held, that these errors did not affect nor vitiate the judge’s main decision, that he could not place reliance upon the testimony which was relied on by the defendant to identify the photographic plates as pictures of the plaintiff’s eye, and that the record showed no abuse of judicial discretion.</p> <p>The action above described was twice tried. At the first trial, a physician called by the plaintiff testified that “There evidently was an X-ray taken of” the plaintiff’s eye within three days after the accident. At the second trial, nine months later, the same witness testified, “An X-ray record shows that there was a foreign body in his eye of some sort.” There was a verdict for the plaintiff at the second trial and exceptions of the defendant were overruled two years after the first trial. Within a month thereafter the motion for a new trial, above described, was filed. The judge found that the defendant failed in the exercise of due diligence to discover the evidence on which he relied in his motion. Held, that the finding was not without support in the evidence.</p> <p>It is not error for a judge, who, upon the denial of a motion for a new trial, filed a statement of facts upon which he relied in so doing, to withdraw such statement from the files and two months later to restore it, after, upon a rehearing of the motion, he has affirmed his former action.</p>

<p>Contract, for breach of a contract in writing relating to the manufacture, sale and lease by the defendant of certain machines invented by the plaintiff. Writ dated February 10, 1919.</p> <p>The declaration was amended after entry, and the amended declaration is described in the opinion. The defendant demurred. The demurrer was heard by Wait, J., and was sustained. The plaintiff appealed.</p> <p>Thereafter the plaintiff moved to amend the amended declaration, as described in the opinion. The motion was heard by Lawton, J., and was denied on the grounds described in the opinion.</p> <p>The rulings sustaining the demurrer and denying the motion to amend the declaration then were reported by the respective judges for determination by this court.</p>

<p>Negligence, Railroad, Contributory, Imputed. Railroad, Grade crossing. Proximate Came. Practice, Civil, Requests for rulings.</p> <p>A guest in a motor car, approaching a grade crossing of a railroad with a highway, was told to "listen for a bell or whistle,” and did so, but heard neither. The view along the track was obstructed until the motor car was within twenty-seven feet from the track, when the driver saw a railroad train approaching, which was about one hundred and twenty feet away. The guest jumped and was injured. The driver of the motor car proceeded at an increased speed and passed the crossing in safety. In an action by the guest to recover for his injuries against the director general of railroads, who was operating the railroad company, the jury found specially that the signals required by St. 1906, c. 463, Part II, §§ 147, 148, were not given, and it was held, that there was evidence warranting a finding that omission to give the signals was negligence of the defendant which contributed to the injury to the plaintiff.</p> <p>At the trial of the action above described, there was evidence tending to show that the plaintiff’s host was reckless in driving the motor car in front of the train as he did. The plaintiff testified that he was looking and listening for an approaching train and relied on himself to learn of its approach. The defendant asked for and the judge refused to make rulings in substance that, if the jury found that the driver of the motor car was reckless, such negligence should be imputed to the plaintiff. Held, that the rulings properly were refused, because it could not be said as a matter of law that the plaintiff entrusted himself wholly to the care of his host.</p> <p>A guest in a motor car which is approaching a grade crossing of a railroad with a highway properly may rely on his host to drive the vehicle while he himself uses his senses to ascertain whether a train is approaching; and if, when a train, whose approach has not before been ascertained because the view of the crossing was obstructed and because the signals of its approach required by statute were not given, suddenly is seen one hundred and twenty feet away, the host carelessly drives forward at an increased speed and avoids a collision, but the guest, fearing a collision, jumps from the motor car and is injured, it cannot be ruled as a matter of law, in an action against the operator of the railroad to recover for such injuries, either that negligence of the host should be imputed to the guest, or that the guest was guilty of contributory negligence.</p> <p>It not being denied, in the action above described, that the plaintiff was. a guest of the driver of the motor car, a request for a ruling that he and the driver were engaged in a joint enterprise and therefore that he was bound by the driver’s neglect, properly was refused.</p>

<p>Tout under St. 1917, c. 344, Part IV, § 24, for damages caused to the plaintiff’s wagon when it struck a limb of a. tree permitted by the defendant to protrude over the travelled part of Hermon Street seven feet from the surface of the ground. Writ in the Municipal Court of the City of Boston dated January 7,1919.</p> <p>The facts found by the judge who heard the action in the Municipal Court are described in the opinion. He refused to grant rulings, asked for by the defendant, in substance that upon the evidence and the law the plaintiff could not recover, and found for the plaintiff in the sum of $91.19, an amount agreed upon by the parties as damages, and reported the case to the Appellate Division, who ordered that the finding be vacated and that judgment be entered for the defendant. The plaintiff appealed.</p> <p>St. 1915, c. 145, §§ 1-5, are as follows:</p> <p>"Section 1. The powers and duties conferred and imposed upon tree wardens in towns by this act are hereby conferred and imposed upon the officials now or hereafter charged with the care of shade trees within the limits of the highway in cities, by the charters of the said cities, by other legislative enactment; or by the ordinances of the said cities, and upon such officials as the city governments shall designate to have charge of said shade trees where it is within their power to transfer such duties, by ordinance or otherwise.</p> <p>"Section- 2. The tree warden may appoint and remove deputy tree wardens. He and they shall receive such compensation as the town determines or, in default thereof, as the selectmen allow. He shall have the care and control of all public shade trees, shrubs and growths in the town, except those within the limits of a. State highway, and except those in public parks or open places under the jurisdiction of the park commissioners, and of those, if so requested in writing by the park commissioners, and shall enforce all the provisions of law for the preservation of such trees, shrubs and growths. He shall expend all money appropriated for the setting out and maintenance of such trees, shrubs and growths, but no trees shall be planted within the limits of a public way without the approval of the tree warden; and in towns until a location therefor has been obtained from the selectmen or road commissioners, where authority has been vested in said commissioners. Regulations, other than those made by the terms of this act, for the care and preservation of public shade trees made by him, and in towns approved by the selectmen, and posted in two or more public places, imposing fines and forfeitures of not more than twenty dollars in any one case, shall have the force and effect of town bylaws. All trees within or on the limits of a public way shall be public shade trees; and when it appears in any proceeding where the ownership of or rights in the tree are material to the issue, that, from length of time or otherwise, the boundaries of the highway cannot be made certain by the records or by monuments, and that for that reason it is doubtful whether the tree be within or "without the limits of the highway, or is public or private property, it shall be taken to be within the limits of the highway and to be public property until the contrary is shown.</p> <p>“Section 3. Except as provided by section five, public shade trees shall not be cut, trimmed or removed, in whole or in part, by any person other than the tree warden or his deputy, whether such person is or is not the owner of the fee in the land on which such tree is situated, except upon a permit in writing from said tree warden, nor shall they be cut down or removed by the tree warden or his deputy or other person without a public hearing at a suitable time and place, after notice thereof posted in two or more public places in the town or city and upon the tree at least seven days before such hearing, and after authority granted by the tree warden therefor; provided, however, that if the tree warden shall refuse to cut or remove or issue a permit to any such owner to cut or remove any such tree or other growth, the damages, if any, sustained by him shall be determined in towns by the selectmen and in cities by the officer or officers in charge of the public shade trees and shall be paid by the town or city. Any person aggrieved by the action of the selectmen or said officer or officers in charge of the public shade trees as to the trimming, cutting, removal or retention of any such tree, or as to the amount awarded to him for the same may have the damages, if any, which he has sustained, determined by the Superior Court for the county in which the said tree is or was situated, upon a petition filed for the purpose, in the same manner as for the taking of land for ways; and his damages, so determined, shall be paid by the town or city.</p> <p>“ Section 4. Tree wardens shall not cut down or remove or grant a permit for the cutting down or removal of a public shade tree if, at or before a public hearing as provided in the preceding section, objection in writing is made by one or more persons, unless such cutting or removal or permit to cut or remove is approved by the selectmen or by the mayor.</p> <p>"Section 5. Tree wardens and their deputies, but no other person, may, without a hearing, trim, cut down or remove trees, under one and one half inches in diameter one foot from the ground, and bushes, standing in highways; and, if ordered by the mayor and aldermen, selectmen, road commissioners or highway surveyor, shall trim or cut down trees and bushes, if the same shall be deemed to obstruct, endanger, hinder, or incommode persons travelling thereon. Nothing contained in this act shall prevent the trimming, cutting or removal of any tree which endangers persons travelling on a highway, nor the removal of any tree, if so ordered by the proper officials, for the purpose of widening the highway, and nothing herein contained shall interfere with gypsy and brown tail moth suppression, as carried on under the direction of the State forester and the United States department of agriculture, except the cutting and removal of trees, shrubs and growths that are one and one half inches or more in diameter one foot from the ground."</p>

<p>Agency, Scope of authority. Malicious Prosecution. Evidence. Proximate Cause. Practice, Civil, Order of evidence.</p> <p>At the trial of an action by a woman against the proprietor of a hotel and restaurant for malicious prosecution, there was evidence warranting a finding that the manager and the cashier of the restaurant were authorized by the defendant to do whatever in their opinion was reasonably necessary in the conduct of the business and the preservation of order, even to the extent of calling the aid of the police and of causing appropriate criminal proceedings to be instituted. There also was evidence tending to show that, upon a controversy arising with the plaintiffs husband over payment for food and drink and after the plaintiff’s husband and the waiter, who had served him and the plaintiff, had assaulted one another, the manager called a police officer and said to him, “Get after these people [the plaintiff and her husband] and get after them quick. . . . You know me! Get after that couple I You know me! and go the limit. I will stand good for it;” and that the cashier said to the officer, “Take them out of here and give them "the limit, push them out of here, take them out of here altogether.” There also was evidence that, in the presence of the manager and of the cashier, the police officer said to the plaintiff and her husband, “You people have been drinking,” that he took them to a police station and caused the arrest of the plaintiff on a charge of drunkenness, and that the plaintiff was acquitted, the charge being groundless. Held, that</p> <p>(1) A finding was warranted that the officer was constituted the agent of the defendant to arrest the plaintiff and to institute against her whatever criminal proceedings in his opinion could be sustained in any view of the acts of the plaintiff at the restaurant;</p> <p>(2) The making of a complaint for drunkenness might fairly be regarded as within the terms of the discretion given to the police officer under all the circumstances;</p> <p>(3) It could not be said that a finding was not warranted that the agents of the defendant, acting within the scope of their authority, without reasonable cause and upon an improper motive, set in motion the train of causation which naturally and proximately resulted in the arrest and accusation of the plaintiff.</p> <p>The order of the admission of evidence is within the discretion of the trial judge.</p>

<p>Bobbery. Evidence, Of testimony before grand jury, To discredit witness, Relevancy and materiality. Witness, Before grand jury, Cross-examination. Practice, Criminal, Cross-examination of witness by district attorney, Argument of district attorney, Requests for instructions, Exceptions, Illegality of proceedings before grand jury. District Attorney. Jury and Jurors. Constitutional Law. Pleading, Criminal, Indictment.</p> <p>At the trial of an indictment of a man for robbery of jewels, the complaining witness, a woman, testified in substance to intimate social relations with the defendant for months before the alleged robbery, that she came to be in fear of him because he abused her, that, finally, while in his room in a hotel in Boston, he by threatening her with a pistol compelled her to telephone to her hotel and direct her maid to bring the jewels to her, and that through threats he compelled her to take jewels from her ears and give them to him. This testimony was controverted by the defendant, and, in cross-examination, he sought to discredit the witness by showing that her testimony before the grand jury was different from that given by her at the trial in that therein no mention of a pistol was made by her. The evidence was excluded. Held, that the evidence should have been admitted.</p> <p>An indictment charged that the defendant, a man, “did assault and beat” the complaining witness, a woman, “with intent to rob her and thereby did rob and steal from the person of said ” witness one diamond collar, two diamond brooches, one pearl necklace, seven finger rings, two diamond studded watches and three other brooches. At the trial, there was evidence warranting findings that, by reason of fear of the defendant and by reason of violence inflicted upon her and the holding of a pistol in her face and the placing of his arm upon her shoulders, the complaining witness at his .direction and command telephoned from his hotel to her own for her jewels, that they were delivered to him by her maid while she was in an adjoining bathroom and that she was compelled by the defendant to remove earrings from her ears and against her will to deliver them to him. Held, that there was sufficient evidence to support the indictment.</p> <p>In order to prove the crime of robbery, it is not necessary to prove that the defendant took the property from the person of the owner; it is enough if, when the property was in the owner’s protection and control, he was compelled to surrender it by violence and fear caused by the defendant.</p> <p>As the indictment above described was tried, the question which the jury had to decide was, whether the jewels were taken from the owner by force and against her will, the defendant contending that they were delivered to him voluntarily by the owner as security for money which he had left with her. At the close of the evidence, the defendant asked for and the judge refused to give instructions based on an assumption that the defendant procured possession of the jewels in an honest belief that he had a right to do so to satisfy a debt due him. Held, that the requests rightly were refused because there was no evidence to which they were applicable.</p> <p>In the indictment above described, the robbery was alleged to have been committed in May, 1917. In cross-examination of the defendant at the trial, the district attorney, subject to an exception by the defendant, was permitted to make several inquiries as to whether he filed or caused to be filed for him a petition in bankruptcy in 1913, to all of which he replied negatively. When the first question was put, the defendant asked if the record was to be offered, and the reply was that the “information will be forthcoming in due time.” No record of any bankruptcy proceedings was offered at any time. This court, because another exception of the defendant was sustained, did not deem it essential to decide whether it was reversible error to admit the evidence, but stated that such a method of cross-examination was highly prejudicial to the defendant, and that, irrespective of whether the district attorney believed that' a petition in bankruptcy had been filed, an unfair advantage was taken of the defendant in putting the questions.</p> <p>One employed by the defendant as a secretary and bookkeeper was permitted, at the trial above described, subject to exceptions by the defendant, to be asked a series of questions as to whether, on sundry occasions, knowledge had come to her that “the authorities” were making an inquiry as to the defendant “selling dope.” All answers were in the negative. Without determining whether the exceptions to the evidence should be sustained, this court stated that the method of cross-examination was highly improper and prejudicial to the defendant, being an attempt by unfair means to belittle him and render him unworthy of respect or credit.</p> <p>If a district attorney, in his closing argument at the trial of an indictment, makes an untrue statement of law, the attention of the judge should be called thereto at once; and an exception to a refusal to grant a request, presented after the close of the argument, for an instruction that the statement was not a true statement of the law, must be overruled.</p> <p>At the trial of the indictment above described, the complaining witness in cross-examination was asked what she did with money realized from pawning her jewels on an occasion previous to the alleged robbery, and answered that she used it to pay the debts of other people. The judge, subject to an exception by the defendant, permitted the district attorney to recall the witness and to ask her if, at the time the jewels were pawned, she had money of her own, and, also, if she was able to pay her debts and had used her money in paying the debts of others, and she answered affirmatively. Held, that the admission of the testimony was within the discretion of the judge.</p> <p>At the trial of the indictment above described, it appeared that the defendant was a dentist and had performed services as such for the complaining witness, and the defendant was permitted to show the value of that work. The defendant offered and the judge excluded evidence as to the reputation of the defendant as a dentist. Held, that the evidence was irrelevant and properly was excluded.</p> <p>Testimony by affidavit by a former maid of the complaining witness at the trial above described having been admitted to show improper relations of that witness with the defendant, the witness was recalled by the district attorney and was permitted to be asked how the affiant came to leave her employ, and answered, “I discharged her,” and the defendant excepted. Held, that, while the evidence properly might have been excluded, as the bias which one witness at a criminal trial feels toward another is not a material matter, under the circumstances of the statements in the affidavit, no reversible error was shown.</p> <p>An objection to an indictment on the ground that unauthorized persons were present with the grand jury when they were hearing evidence relating to the charge made against the defendant, comes too late if it is presented for the first time after a general plea to the indictment, a trial and a verdict of guilty, by motions for leave to withdraw the plea and to file a plea in abatement and other pleadings adapted to raise the question of the legality of the indictment.</p>

<p>Jurisdiction. Admiralty. Negligence, Employer’s liability. Ship. Practice, Civil, Ordering verdict. Pleading, Civil, Declaration. Words, “Indemnity,” “Compensation,” “Damages.”</p> <p>If a motion by the defendant, at the close of all the evidence at the trial of an action at law, that a verdict be ordered in his favor is denied by the judge without asking the defendant to point out more particularly the propositions of law upon which he relies, and the defendant alleges an exception, it is open to the defendant in this court to raise any question of law actually involved.</p> <p>One employed on a ship as ship’s cook and seaman, who receives personal injuries when boarding his ship in tidewater by reason of the breaking of a defective ratline, which properly was being used by him and which should have been kept in a safe condition by the owner of the ship, may recover damages for his injuries in an action of tort at common law against the owner of the vessel in the Superior Court, such right being reserved by the provisions of 36 U. S. Sts. at Large, 1091,1161, saving “to suitors in all cases,” from the exclusive jurisdiction of all “causes of admiralty and maritime jurisdiction” vested in the federal courts, “the right of a common law remedy where the common law is competent to give it.”</p> <p>In the action above described, it was held, that the plaintiff was entitled to recover ■ full compensatory damages.</p> <p>A declaration in an action of tort by one employed as ship’s cook and seaman against the owner of the ship, which alleged that the owner owed to him as a member of the crew the duty to keep and maintain the ship and her rigging, furnishings and appurtenances in a safe condition and that “by reason of the negligence” of the defendant a ratline had become defective, weakened and unsafe, whereby the plaintiff suffered injuries while the ship was lying alongside a wharf or pier in tidewater, plainly describes a maritime tort and sets out a cause of action entitling the plaintiff to “indemnity” for his injuries. Following The Osceola, 189 U. S. 158, 175.</p> <p>The allegation in the declaration above described that the condition of the ratline arose “by reason of the negligence” of the defendant, and an instruction to the jury at the trial which required the plaintiff, in order to recover, to prove negligence of the defendant with respect to the ratline, were not harmful to the defendant, whether the basis of recovery for the maritime tort was that the owner was an insurer of the fit condition of the proper appliances appurtenant to the ship, or that he was guilty of such a failure to perform his duty as constituted negligence on his part.</p> <p>It seems, that, according to the practice of the admiralty courts, the right of recovery by the seaman under the circumstances above described rests upon proof of negligence of the owner.</p> <p>If a member of the crew of a ship, which belongs to two owners and is managed by only one of them, receives personal injuries while in tidal waters by reason of a defective condition of a ratline which it was the duty of the owners to keep in a fit condition, he may recover full compensatory damages in an action against the managing owner only.</p>

<p>Equity Jurisdiction, To enjoin use of trade name. Trade Name. Corporation.</p> <p>In a suit by one Robert Bums to restrain a corporation named William J. Bums International Detective Agency, Inc., from using the name “Burns Detective Bureau,” “Bums Detective Agency” or “Bums Agency,” there was evidence that the plaintiff was licensed by the city of Cambridge in 1909 as a private detective and in that year opened an office in Boston; that in January, 1911, he registered the name “Bums Detective Bureau” and thereafter until the present suit continued the detective business under that name and advertised and was listed under that name in the Boston city directory and the Boston telephone directory; that from 1903 to 1909 one William J. Burns was engaged in secret service work for the federal government and established a national reputation as a detective; that in 1909 he engaged in business privately and organized the defendant corporation, its name always containing the surname Bums but being changed twice; that in February, 1911, the defendant opened an office in Boston and was listed in the telephone directory as “Bums William J. National Detective Agency, Inc. The,” and “Bums William J. International Detective Agency Inc. The” and also appeared in the Boston city directory for 1913 as “Bums Detective Agency, The William J. National, Inc.” and in the Boston telephone directory in 1915 and 1916 as “Bums Detective Agency, The William J. International Inc.;” that the form of listing in the telephone directory of 1915 was requested by the defendant in order that its name might catch the eye of the public before it rested on the plaintiff’s name. There was no evidence that the change in the listing was made for the purpose of inducing persons to do business with the defendant under the belief that they were doing business with the plaintiff. Held, that</p> <p>(1) William J. Bums had a right to use his own name in his business as a detective and to incorporate and carry on a detective agency with the use of that name;</p> <p>(2) The likelihood that the mere alphabetical arrangement in the telephone directory would mislead was not a sufficient reason for issuing an injunction, where it did not appear that the defendant attempted to hold itself out as the plaintiff, or to deceive the plaintiff’s patrons;</p> <p>(3) The bill should be dismissed.</p>

<p>Tort, with a declaration in eight counts, to recover penalties provided by R. L. c. 100, § 62. The first four counts alleged respectively sales of intoxicating liquor by the defendant or his agent or servant to the plaintiff’s minor son on June 22, 24, 26, and July 1. The last four counts alleged respectively that on those dates the defendant or his agent or servant permitted the plaintiff’$ minor son to loiter upon the defendant’s premises where sales of intoxicating liquor weie being made. Writ in the Second District Court of Southern Worcester dated December 9, 1916.</p> <p>On appeal to the Superior Court, the case was tried before Hammond, J. The material evidence is described in the opinion; The judge refused, at the close of the evidence, to direct a verdict for the defendant on counts 5, 6, 7 and 8. The jury returned a verdict of $600 for the plaintiff upon three counts by reason of sales to her son on June 22, 24, 26, and upon three other counts because the defendant permitted the son to loiter on his premises on those dates, and found for the defendant on both the counts which alleged offences on July 1. The defendant alleged exceptions.</p> <p>The material portion of R. L. c. 100, § 62, reads as follows:</p> <p>“Whoever, himself or by his agent or servant, sells or gives intoxicating liquors to a minor, either for his own use, the use of his parent or of any other person, or allows a minor to loiter upon the premises where such sales are made, shall forfeit one hundred dollars for each offense, to be recovered by the parent or guardian of such minor in an action of tort.”</p> <p>The case was submitted on briefs.</p>

<p>Homicide. Evidence, Of motive. Practice, Criminal, Exceptions.</p> <p>Although the Commonwealth is not obliged in any case to prove a motive for the committing of the crime of murder, evidence tending to show a motive always is competent because, if clearly shown, it may help to confirm the conclusion, reached upon all the other evidence, that the accused committed the crime charged.</p> <p>At the trial of an indictment for murder, there was evidence tending to show that the deceased was employed in the reclamation department of a railroad corporation and lived alone in a small house on a country road in a sparsely settled district; that near his house there was a path, which crossed wooded land near a swamp to railroad tracks and which the deceased frequently used to go to and from his work; that a companion of the defendant, also indictedfor the same murder, owned a house near that of the deceased on the same country road and that a path ran from near his house and joined that running by the swamp to the railroad; that the defendant and his companion had been employed in building a culvert near the reclamation department of the railroad corporation; that two days before the murder the defendant and his companion went with a junk dealer by way of the path by the swamp and another path to a hole in the swamp where they exhibited to him a lot of brass journal boxes which they sought to have him purchase. The Commonwealth, subject to exceptions by the defendant, was permitted to introduce testimony of the foreman under whom the deceased had worked, that on the day when the defendant interviewed the junk dealer the deceased and the foreman had a conversation in consequence of which they went from the raiboad tracks up the path toward the house of the deceased; that they had gone about forty feet along the path when the foreman saw the defendant with a shotgun in his hand cross the path ahead of him; that he waved his hand to the defendant and shouted to him; that the defendant saw them and ran away; that the deceased led the foreman to the hole in tile swamp, where the foreman saw a large quantity of brass junk which he identified by marks as property of the railroad corporation, and that previous to that date brass junk wrongfully had been taken from the corporation. The deceased was killed two days later by revolver shots and knife wounds. There was other evidence that the defendant committed the deed. Held, that</p> <p>(1) The testimony that the deceased and the foreman had a conversation merely referred to a relevant fact and was competent;</p> <p>(2) The further testimony of the foreman was competent as tending to show that the secreted brass junk was stolen property;</p> <p>(3) Taken in connection with the evidence as to the defendant’s negotiations with the junk dealer, the testimony of the foreman tended to show that the defendant had stolen the junk and had secreted it;</p> <p>(4) The testimony of the foreman was admissible as tending to show a motive for the crime.</p> <p>While a defendant indicted for a crime is not to be convicted by evidence that he previously had committed other crimes wholly disconnected with that charged and such evidence should be excluded, yet, if it be shown that the defendant has committed other crimes, the proof of which has a tendency to establish the commission of the crime charged, evidence of the commission of the earlier crimes is admissible.</p> <p>The bill of exceptions saved by the defendant at the trial above described recited that the trial judge instructed the jury fully as to the law upon the main issues presented, to which no exception was taken. The charge contained no reference to the alleged larceny of brass. The defendant did not make any request that an instruction should be given on that subject, did not call the judge’s attention to the omission of the subject from the charge, and saved no exception on the subject. Held, that it was not open to the defendant to contend in this court that the omission of instructions on the subject of the larceny of the brass was error entitling him to a new trial.</p> <p>Instructions which permitted a jury to find that one, who had committed a homicide, was guilty of murder in the first degree because the homicide was committed with extreme atrocity and cruelty are warranted where there was evidence tending to show that the defendant either alone or assisted by others committed the homicide by stabbing and cutting the deceased in twenty places and by shooting him in the head three times.</p> <p>A request, made for the first time at the close of the charge to the jury at the trial of an indictment for murder, for an instruction based on facts of which there was no evidence at the trial, properly may be refused.</p>

<p>Tax, On income of foreign corporation. Corporation, Foreign. Constitutional Law, Taxation of income of foreign corporation, Interstate commerce. Interstate Commerce.</p> <p>The principal business of a corporation, organized under the laws of Maine and having a usual place of business in Boston in this Commonwealth, was the buying of milk from farmers, transporting it to Boston and there selling it by daily deliveries to retail dealers and consumers. About ninety per cent of such milk was purchased in States other than Massachusetts. The milk in the great majority of instances was delivered by the farmers to the employee at the train or to the corporation’s milk station, whence it was shipped daily by railroad to Boston in cans of the corporation, which paid the freight charges. At Boston the milk was removed from the cans, pasteurized, put into other cans or bottles and distributed, chiefly by vehicles of the corporation, to its customers or to its own retail stores. The corporation also manufactured and sold certain other milk and dairy products both within and outside of Massachusetts. Upon a bill in equity by the corporation seeking the abatement of a tax upon its net income for the year ending January 31, 1918, assessed under St. 1918, c. 253, it was . held, that :</p> <p>(1) By the provisions of § 3 of the statute, income derived by the corporation from sales of milk and other articles either outside of Massachusetts or by direct shipment from outside of Massachusetts to its customers within the Commonwealth .was not subject to taxation; <></p> <p>(2) The corporation ceased to be engaged in interstate commerce as to the milk when, after its arrival in Boston, it changed the method of dealing with and disposing of it;</p> <p>(3) The transactions with the milk after its arrival in Boston were domestic transactions, and net income derived therefrom was subject to the tax imposed by the statute;</p> <p>(4) The statute did not impose a direct burden upon interstate commerce and violated no right secured to the corporation by the Federal Constitution.</p>

<p>Contract, In writing, What constitutes. Corporation, Officers and agents.</p> <p>In an action by a corporation upon a contract in writing, it appeared that among the provisions included in a printed form for the contract before its execution was the following: “This contract is not binding unless approved by the President or Treasurer of the” corporation, the plaintiff. At the bottom of the form was printed the word “Approved,” followed by the name of the plaintiff and, under the name, the word “by” followed by a blank space. The defendant executed the contract and thereafter the plaintiff’s treasurer wrote in his name in the blank space under the plaintiff’s name and after the word “by.” Held, that the contract was executed by the plaintiff and was approved by its treasurer in writing.</p> <p>The contract above described also contained a provision, “No verbal conditions made by agents will be recognized. Every condition must be specified on the . face of this contract.” At the trial, the defendant offered and the judge excluded evidence tending to show that an agent of the plaintiff, as an inducement to the defendant to execute the contract, promised that, although the plaintiff would insert no provision as to cancellation in the contract, the defendant would have the right to cancel the contract at any time that he found it unprofitable on giving thirty days’ notice of such cancellation to the plaintiff, that such representation was made with a purpose of defrauding the defendant and that it was not intended by the plaintiff’s agent that the representation should be carried out. Held, that the evidence properly was excluded, because by the express provision of the contract the plaintiff was not bound by the representation of the agent.</p>

<p>Petition, filed in the Superior Court under St. 1916, c. 269, § 20, by the executors of the will of John W. Wheelwright, late of Westwood, seeking an abatement of a tax upon income assessed to the petitioner under St. 1916, c. 269.</p> <p>In the Superior Court the petition came on to be heard by Hammond, J., and, the parties agreeing that the petition and the answer stated all material facts, the judge reported the ease to this court for determination.</p>

<p>Practice, Civil, Appeal, Abatement.</p> <p>Upon an appeal, under R. L. c. 173, § 96, as amended by Sts. 1906, c. 342; 1910, c.555, §4, from a judgment entered upon a motion by the plaintiff (the defendant not moving) after the sustaining of an answer in abatement of a writ, the record properly before this court consists only of the writ, the declaration, the answer in abatement, the motion for judgment, the order allowing the motion and the appeal, and does not include a memorandum of facts found by the judge or copies of affidavits and of documentary evidence submitted to the judge at the hearing upon the answer in abatement.</p> <p>A finding of fact made by a judge of the Superior Court in an order sustaining an answer in abatement is not subject to review upon an appeal by the plaintiff from a judgment for the defendant entered in accordance with such order.</p>

<p>Petition, filed in the Supreme Judicial Court on January 29, 1920, for a writ of mandamus directing the commissioners of the Department of Public Utilities to approve an agreement made on July 21, 1919, between the petitioner and the New England Fuel and Transportation Company, a voluntary association; also a</p> <p>Petition, filed in the same court on the same day, for a writ of certiorari, directing the same commissioners to certify the records of the Board of Gas and Electric Light Commissioners, whom under St. 1919, c. 350, § 117, they succeeded, relating to proceedings described in the opinion, to the end that such proceedings might be quashed and other appropriate relief given.</p> <p>By order of Crosby, J., the two petitions were consolidated for hearing and adjudication, and then were heard by him.' The single justice filed the following memorandum and order for judgment:</p> <p>“The Board of Gas and Electric Light Commissioners having found under St. 1903, c. 417, § 6, that under the contract between the petitioner and the New England Fuel and Transportation Company dated September 27, 1917, as amended by agreement of July 21, 1919, by which the price to be paid for gas under the original contract is increased to 35 cents per thousand cubic feet, is less than it would cost the petitioners to make its gas in gas works of standard type, properly equipped, suitably situated, and of sufficient capacity to make all the gas required by the whole district supplied by said company, it was the legal duty of the Commissioners to approve the change in price and it is now the legal duty of the respondents to approve said 'change in price, and I so rule. I am of opinion and rule that the Board of Gas and Electric Light Commissioners cannot lawfully refuse to approve the change in price for the reason stated or for any other’ reason in view of the findings made and above referred to. I also rule that the respondents are bound by the findings so made and that the legal duty is imposed upon them to approve the agreement of July 21, 1919. The result is that the petitioner is entitled to a writ of mandamus, which is to issue.”</p> <p>Other facts shown by the pleadings are described in the opinion.</p> <p>At the request of the respondent the single justice reported and reserved the petitions for determination by the full court upon the pleadings and his memorandum of rulings of law and order for judgment.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Proximate Cause.</p> <p>Incapacity of a cigar maker, caused by neuralgic pain which, in a proceeding under the workmen’s compensation act, an impartial physician testified was likely to be caused by any other occupation and could result independently of any occupation or from any sitting or standing occupation, and which, upon evidence including that of the impartial physician, the Industrial Accident Board found was induced by muscular action in rolling cigars, while it properly may be found to have arisen during the course of the employee’s employment, cannot be found to have arisen from it in such a sense as to entitle him to compensation under the workmen’s compensation act.</p> <p>An occupational disease is not a personal injury, arising out of and in the course of employment, compensation for which may be awarded under St. 1911, c. 751, Part II, § 1.</p>