Volume 237 — Massachusetts Reports

<p>Nuisance. Lewdness. Practice, Criminal, Plea, autrefois acquit. Evidence, Of general reputation, Secondary, Admission, Relevancy and materiality.</p> <p>The keeping and maintaining of a house wherein are committed indecent and unnatural acts by men with others of their sex is an offence punishable under St. 1914, c. 624, §§ 1, 2.</p> <p>An acquittal upon a trial of an indictment charging the defendant with being a lewd, wanton and lascivious person in speech and behavior is not a defence to an indictment under St. 1914, c. 624, §§ 1, 2, for the keeping and maintaining, during the same period described in the former indictment, of a building, part of a building, tenement or place used for lewdness.</p> <p>Where, at the trial of an indictment charging the maintaining of a nuisance under St. 1914, c. 624, §§ 1, 2, after a witness for the defendant has been permitted to testify in direct examination that he knew the defendant’s reputation for chastity and morality and for truth and veracity and that it was good, and he then had testified in cross-examination that he had heard the defendant’s reputation discussed only in the family of the witness’s father-in-law, who was the defendant’s employer, it was proper for the judge to exclude the evidence, since it did not appear that the witness had sufficient knowledge of the defendant’s general reputation.</p> <p>At the trial of the indictment above described, a witness for the Commonwealth testified that, upon entering the defendant’s house, he was shown a newspaper clipping by the defendant and asked to read it and then was asked his opinion concerning it, and that he returned the clipping to the defendant. The defendant’s attorney was asked at the trial if he had the clipping and replied in the negative. The witness then was permitted to testify to the contents of the clipping and it appeared that it related to the conduct of two men who had been arrested while occupying the same room at a hotel. The evidence was offered by the Commonwealth to show that the defendant -desired to ascertain whether the witness was susceptible to the obscene suggestion contained in the clipping. Held, that</p> <p>(1) In the circumstances no notice to produce the newspaper clipping was necessary before secondary evidence as to its contents should be admitted;</p> <p>(2) In admitting the secondary evidence the judge did not deprive the defendant of any of his rights.</p> <p>At the trial of the indictment above described, evidence of silence on the part of the defendant when he was informed of indecent and unnatural acts by men in his house, was held to have been admissible as tending to show an admission of guilt.</p> <p>At the trial above described, there was evidence that one of the witnesses for the Commonwealth was enlisted in the United States navy and had been ordered by the provost marshal to go to the defendant’s house. The defendant offered to show that the method of investigation pursued by the witness had been “disapproved of by the United States government.” The evidence was excluded. Held, that the exclusion was proper.</p>

<p>Contract for $90,000 for “ services rendered in obtaining an order from the British government for the manufacture of one hundred thousand six-inch shells at $18 per shell,” the plaintiff’s claim being based upon an oral agreement, described in the opinion, alleged to have been made by the parties on July 30, 1915. Writ dated September 1, 1916.</p> <p>• The answer, besides a general denial, included an allegation that the contract relied on by the plaintiff was unlawful and unenforceable.</p>

<p>Negligence, Causing death, Street railway, In use of highway.</p> <p>At the trial of an action by an administrator against a street railway company for causing the death of the plaintiff’s intestate by running over him, the evidence tended only to show that the place of the accident “was right out in the country,” in a sparsely settled neighborhood, where double tracks of the defendant were entirely at the side of a wide highway, not in a reserved space, but “grassed over” between the rails; that commonly no traffic of any kind excepting that of the street railway was within the location of the street railway tracks; that, with a weak headlight on a winter morning about two hours before sunrise, the street car approached the place of the accident on the track farther from the wrought and travelled way around a slight curve and at the rate of from fifteen to twenty miles an hour. The motorman, called as a witness by the plaintiff, testified without contradiction that, when about sixty-two feet away from the decedent, he for the first time saw the prostrate form of the decedent lying between the rails covered with" a light sprinkling of snow and that, using every effort, he stopped the car in about one hundred fifty-five feet. Held, that a finding of negligence on the part of the motorman was not warranted.</p>

<p>Landlord and Tenant, Eviction. Actionable Tort. Practice, Civil, Report, New trial.</p> <p>A report by a judge of the Superior Court for determination by this court of the correctness of a ruling allowing a motion by a defendant at the close of all the evidence at a trial that a verdict be ordered in his favor must be presumed, in the absence of indications to the contrary, to state all the evidence material to the questions of law presented.</p> <p>A lessee of premises under a lease in writing, who has been unlawfully evicted by the lessor, may elect to maintain against the lessor either an action of contract for breach of the covenant in the lease for quiet enjoyment, or an action of tort.</p> <p>At the trial of an action of tort by a lessee under a lease in writing against the lessor for damages resulting from an alleged unlawful eviction, there was evidence tending to show that the premises were let for store purposes, that at a time when the plaintiff had been absent from them for two weeks, during which they were unoccupied except for a small stock of goods, he returned with several companions and, attempting to enter by the front door, was unable to do so with his key; that he then gained access by a rear door, and observed that a key was on the inside of the front door; that there then was a conversation between the plaintiff and the defendant during which the plaintiff demanded the premises and stated that he had brought young men with him to start business and that they were ready to begin work at once; that the defendant denied the plaintiff possession of the store, said that there was money due him and that the plaintiff could not start business until that was paid him, and that the plaintiff stated “If I can’t do anything, I got to go out,” and departed. There was no evidence that at that time there had been any breach of the covenants or conditions of the lease by the plaintiff. Held, that a finding was warranted that the plaintiff had been unlawfully evicted.</p> <p>Where, upon a report to this court for determination of the correctness of a ruling by a judge of the Superior Court ordering a verdict for the defendant in accordance with leave reserved under St. 1915, c. 185, after the jury had found for the plaintiff, it appeared that, following the verdict for the plaintiff and before the judge had ordered a verdict for the defendant, the defendant had filed a motion that the verdict for the plaintiff be set aside and a new trial ordered, this court, having determined that the verdict for the defendant was ordered improperly, held that the motion for a new trial still must be decided and ordered that the verdict for the defendant be set aside, and that the verdict for the plaintiff should stand and judgment be entered in accordance therewith unless after a hearing the judge of the Superior Court granted the defendant’s motion that it be set aside.</p>

<p>Contract upon a policy of insurance of an automobile against theft. Writ in the Municipal Court of the City of Boston dated September 22,1919.</p> <p>On removal to the Superior Court, the action was tried before Sanderson, J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The jury found for the plaintiff in the sum of $1,526.13; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs..</p>

Contract upon an express contract for services as a nurse, described in the opinion. Writ dated August 18, 1917. In the Superior Court the action was tried before Callahan, J. The pleadings, material evidence and exceptions saved by the defendant are described in the opinion. The jury found for the plaintiff in the sum of $77.09; and the defendant alleged exceptions. The case was submitted on briefs. ,

Contract upon a judgment. Writ by trustee process in the Municipal Court of the City of Boston dated September 29,1919. The defendant was defaulted. The proceedings relating to the alleged trustee are described in the opinion. The judge of the Municipal Court charged the trustee and at the request of the claimant reported the case to the Appellate Division, who dismissed the report. The claimant appealed.

<p>Petition, filed in the Supreme Judicial Court for the county of Suffolk on January 9, 1920, and afterwards amended, under St. 1909, c. 490, Part III, § 70, for the abatement of a tax of $2,000 assessed upon the petitioner, a foreign corporation, under Part III, § 56, of that statute,as amended by St. 1918, c. 235, and paid by it under protest.</p> <p>Material allegations of the petition are described in the opinion. The defendant demurred. The case was reserved by Pierce, J., for determination by this court upon the amended petition and the demurrer.</p>

<p>Prohate Court, Jurisdiction, Appeal. Executor and Administrator. Words, “Suitable persons.”</p> <p>Under R. L. c. 137, § 8, the executor of the will of a widow, who was executrix of her husband’s will and who had died after filing an inventory but without ever having filed an account and without having fully administered the estate of her husband, was not entitled as a matter of right to be appointed administrator with the will annexed of the estate of the husband not already administered.</p> <p>The power given to the Probate Court by R. L. c. 137, § 8, to appoint “a suitable person” as an administrator with the will annexed of an estate not already administered, authorized an appointment in the exercise of sound discretion by the court; and, after the death of a widow who was executrix of the will of her husband, the appointment of one, to whose personal qualifications there was no objection and whom the judge found to be a suitable person, as administrator with the will annexed of the estate of the husband not already administered in preference to the executor of the will of the widow, cannot be said to show an abuse of discretion.</p> <p>In determining who should be appointed in the circumstances above described, it was proper for the judge of the Probate Court to rule that the rights of the widow in the estate of her husband, being dependent upon the construction of his will, were not involved.</p>

Petition, filed on October 14, 1920, by a taxable inhabitant of the town of Brookline, for a writ of mandamus commanding the Treasurer and Receiver General “not to distribute or pay over any portion of the tax for the year 1920 or the year 1921 raised under the provisions of St. 1916, c. 269, from the petitioner or from any other inhabitant of the town of Brookline to any other city or town until the further order of the court.” The respondent demurred.

<p>Petition, filed in the Superior Court on December 24, 1918, under R. L. c. 196, for an assessment by a jury of damages suffered by the petitioner through flowage of his land by the respondents.</p> <p>The respondents moved that the petition be dismissed because it did not appear that it was brought “within three years after the injury complained of, as required by R. L. c. 196, § 4.” The motion was heard by N. P. Brown, J., and was allowed; and the petitioner alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on May 27, 1919, to enforce an order of the board of health of the town of Mansfield.</p> <p>The suit was referred to a master. Material findings of fact contained in the master’s report are described in the opinion. By order of N. P. Brown, J., there were entered an interlocutory decree confirming the report and a final decree dismissing the bill. The plaintiff appealed from the final decree.</p>

<p>Tort, with a declaration as amended in two counts, the first count being for the conversion of nursery stock, and the second for the destruction of shrubs, plants and trees, owned by the plaintiff, by reason of negligence of the defendant in dumping upon them stones and dirt. Writ in the Central District Court of Worcester dated September 24, 1913.</p> <p>On appeal to the Superior Court the action was referred to an auditor, and, after the filing of the auditor’s report, was tried before Sanderson, J. There was evidence tending to show the following facts:</p> <p>For several years previous to May 8,1913, the plaintiff, a landscape gardener and nurseryman, had occupied as a tenant at will about two acres of land, a part of which belonged to the Worcester Art Museum and was located on Park Avenue in the city of Worcester. On or about May 8,1913, the Worcester Art Museum conveyed a part of the premises to the Worcester Polytechnic Institute, it having been purchased by the Institute’s alumni association. The Worcester Polytechnic Institute and the alumni association of the Institute each wrote to the plaintiff of the purchase and requested him to remove his property within the next thirty days. Upon receipt of these letters the plaintiff went to the secretary of the alumni association and asked him if the time suggested for the removal of his property could not be extended. He was referred by the secretary to the defendant, who, the secretary said, was to be the contractor for the construction of an athletic field upon the premises. The plaintiff thereupon saw the defendant and told him of the letters he had received, that it would be a hardship to remove the property within the time suggested, and asked the defendant if a greater time could not be allowed. The defendant told the plaintiff that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be needed for the operations. On May 24, 1913, the alumni association entered into a contract with the defendant for the construction of an athletic field upon the premises purchased. The defendant began work under this contract shortly after the date of its execution. During the summer of 1913, the plaintiff, at the request of the defendant’s foreman, from time to time removed portions of the nursery stock which were in the way of the defendant’s operations, and removed all of his buildings. At no time before the conversion alleged was any time given by the defendant to the plaintiff within which he would be obliged to remove his remaining stock, nor did the plaintiff at any time receive from any one any notice to vacate the premises, other than the letters above referred to. Neither the Worcester Polytechnic Institute, the alumni association, nor any one in their behalf ever claimed any property in the plaintiff’s nursery stock or forbade the plaintiff to remove it.</p> <p>Shortly before September 23, the plaintiff noticed that some of his nursery stock had been dug up and laid upon the ground and the defendant’s foreman told the plaintiff that he (the plaintiff) was not to be allowed to take away the remainder. The plaintiff then saw the defendant and was told by the defendant that he would not be allowed to remove the remainder of the stock and that he must keep off the property. On or about September 23, the plaintiff went upon the premises with his men and started to remove his nursery stock, whereupon the defendant’s foreman forbade the plaintiff from removing the stock. Immediately after this the defendant’s men removed the stock from the ground, baled it and took it away under the defendant’s directions.</p> <p>All of the nursery stock which the plaintiff contended was converted was planted in the ground and most of it had been planted there since the year before, if not longer.</p> <p>During the construction above referred to, the defendant’s foreman had occasion to remove a large quantity of stones from the land where he was working and at the plaintiff’s suggestion dumped the same upon an adjoining lot which was occupied by the plaintiff and upon a part of which the plaintiff had nursery stock. The defendant’s men were negligent in the manner in which they dumped the stones and thereby injured the plaintiff’s nursery stock.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, it being agreed that, if the judge was wrong in ordering a verdict for the defendant on the first count, the plaintiff should have judgment thereon for the stun of $383.90 with interest at the rate of six per cent per annum from September 23,1913; that, if the judge was wrong in ordering a verdict for the defendant on the second count, the plaintiff should have judgment thereon for the sum of $44 with interest at the rate of six per cent per annum from September 23, 1913.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort, the second action being for personal injuries and the first action being by the husband of the plaintiff in the second action for loss resulting to him from her injuries and for damage to his automobile resulting from a collision at about ten o’clock in the evening of July 24, 1916, with a street car of the defendant. Writs dated May 14,1917.</p> <p>In the Superior Court, the actions were tried together before Cox, J. The material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict for it be ordered in each case. The motions were denied. It is stated in the record that, after the arguments and before the charge to the jury, the counsel for the plaintiffs stated to the trial judge “ that he was willing that the jury should be instructed that if they were satisfied by a fair preponderance of the evidence that either Mr. Fitch or Mrs. Fitch was not in the exercise of due care, it would be the duty of the jury to return a verdict for the defendant in both cases. To this instruction the defendant’s counsel assented; and it was agreed that the question of imputed negligence should not be submitted to the jury.”</p> <p>The jury found for the plaintiff in the first action in the sum of $124, and for the plaintiff in the second action in the sum of $1,000; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions, Special answers by jury. Negligence, Causing death.</p> <p>Upon a petition for the establishment of an exception alleged by the plaintiff in an action of tort to have been saved to the ordering of a verdict for the defendant after the return of answers by th'e jury to special questions, where from the report of a commissioner it appeared that the trial judge did not remember that an exception was saved, that the plaintiff’s counsel testifiéd that one was saved and the defendant’s counsel testified that it was not, and the commissioner, upon subsidiary findings of fact, found that, “though the matter is not entirely free from doubt,” he was satisfied that an exception was saved, this court, “with some hesitation,” concluded that an exception was saved legally and established the exception.</p> <p>At the trial of an action under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, by an administrator against a railroad corporation for causing the death of the plaintiff’s intestate, the trial judge submitted to the jury a question, “Did or did not the acts of . . . the deceased contribute to his injury?” The jury returned the question with an affirmative answer. The judge then asked the jury if they understood the question, which he phrased, “Did or did not any want of care on the part of . . . [the deceased] . . . contribute to the accident? ” and the jury answered affirmatively. Held, that the answer to the judge’s oral question had the force of a special finding of fact.</p> <p>Under counts of a declaration by an administrator against a railroad corporation alleging that conscious suffering and death of the plaintiff’s intestate were caused by negligence of the defendant or its servants or agents, and not setting forth wanton or reckless misconduct of the defendant or its servants or agents as a cause of action, one count being based on St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, but containing no allegation that the intestate was a passenger, and the other two seeking recovery for conscious suffering, there can be no recovery if the jury find that want of care of the intestate contributed to the accident although they also find, in answer to a special question submitted to them, that “the acts of the defendant’s servants and agents” were “wanton and reckless.”</p> <p>Want of due care is not a defence to an action against a railroad corporation under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, for causing the death of a passenger.</p> <p>In an action by an administrator against a railroad corporation under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, for causing the death of the plaintiff’s intestate while a passenger of the defendant, the declaration alleged as the cause of the death negligence of the defendant or its servants or agents. Special questions were put to the jury, but no special question as to whether negligence of the defendant or its servants or agents caused the death. They were asked, “Were the acts of the defendant’s agents or servants wanton and reckless?” and answered affirmatively. They also were asked if want of care on the part of the intestate contributed to the accident and answered affirmatively. The judge ordered a verdict for the defendant. Held, that</p> <p>(1) The intestate being a passenger, want of care on his part was not a defence to the action under the statute;</p> <p>(2) The finding that “the acts of the defendant’s agents and servants” were “wanton and reckless” was not a finding of the negligence alleged in the declaration;</p> <p>(3) In order to recover upon the declaration it was necessary that negligence of the defendant or its agents or servants be found;</p> <p>(4) There was a mistrial because the question, whether acts of the defendant’s agents or servants were wanton and reckless, was not applicable to any issue raised by the pleadings, and because no question was submitted to the jury as to negligence of the defendant, its servants or agents, and that issue was not passed upon.</p>

Petition, filed in the Probate Court for the county of Norfolk on December 14, 1916, by the trustee under the will of Frances Rupp,' praying that a decree of that court discharging the Fidelity and Casualty Company of New York as surety on the bond of William H. Drury, the predecessor of the petitioner as trustee, be vacated; also a Petition, filed in the same court on February 4, 1919, by Mary M. Withington and Elizabeth R. Withington, alleging that they were interested in…

<p>Agency, Employee’s duty of fidelity. Equity Jurisdiction, Constructive trust. Trust, Constructive.</p> <p>At the hearing of a suit in equity by the proprietor of a shoe business against the owner of a building wherein he was a tenant and one to whom, while employed by the plaintiff, the owner had given a lease of the premises, to have the former employee declared a constructive trustee of the lease for the plaintiff, it appeared that/ when the owner had acquired title, the plaintiff was occupying the premises under a lease by which, upon sale, the tenancy could be terminated by a notice in writing and that the defendant owner had given such a notice. There was evidence' tending to show that negotiations had occurred between the defendant owner and the. plaintiff as to an increase in the amount to be paid as rent, that the plaintiff had stated to the owner that he would not pay an increase demanded and that the owner could let the premises to whomsoever he pleased on the terms demanded; that the defendant employee knew of these facts from the plaintiff; that thereafter the two defendants for the first time negotiated between themselves as to a lease and the lease was made; that the employee was not a confidential employee, that he did not make any false statements to the plaintiff to lull him to repose, that there was no especial good will or value to the plaintiff in the premises and that the rent asked of the plaintiff by the owner was fair. By order of the judge, a decree was entered dismissing the bill. Held, that the decree was warranted.</p> <p>After the entry of the decree dismissing the bill in the suit above described, the plaintiff appealed and refused to vacate the premises. A motion by the defendant lessee thereupon was allowed permitting the filing of a cross bill seeking that the plaintiff be directed to surrender possession of the premises and for damages. Held, that in the circumstances the court had no jurisdiction or authority to permit the filing of the cross bill while the. appeal was pending.</p>

<p>Tort for personal injuries due to the falling upon the plaintiff on April 16, 1915, of a marble slab which had leaned against the wall by the side of a platform at the foot of stairs leading from the kitchen to the cellar in a house occupied by the plaintiff’s daughter as a tenant of the defendant. Writ dated October 21, 1915.</p> <p>In the Superior Court the action was tried before McLaughlin, J. The testimony of the plaintiff’s daughter as to the promise relating to cleaning out the cellar, referred to in the opinion, was as follows: That she first inspected the premises, before letting them, early in July, 1914; “that the floors were not swept up; that the cellar stairs ‘was full of rubbish and broken bottles, so I didn’t go down, and it was quite dark, so I didn’t trust myself to go down;’ that she then went back to the defendant’s office, talked with Mr. Leslie Rogers, who had charge of renting and collection of rents of this and other property of the defendant trustee; ‘we talked about the house, and he said he was going to have it fixed up in perfect condition, and asked me if I had seen the furnace down in the cellar; I said no, I couldn’t, the cellar was full of rubbish, and I settled up about the terms with him, and everything would be fixed up after we moved in;’ that thereafter she said ‘All right,’ and paid a deposit on the house; that this occurred the first part of July; that on the twenty-seventh or twenty-eighth day of July she went to the defendant’s office and paid the balance of the rent, $45; that she was informed that the painter had the keys and they would be sent to her on the following day; the keys were brought up to the house the following day while the tenant was moving in; that the cellar stairs ‘seemed to be in the same condition as to the dirt; ’ that the platform at the foot of the cellar stairs was ‘exactly the same as the first day I saw it;’ that Leslie Rogers came in the afternoon and that the tenant spoke to him about the cellar, and ‘he told me he would have a man come up and clean it all out for me the next day;’ that a man came the following day after they had moved in.”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract, upon an agreement in writing made by correspondence and described in the opinion. Writ dated March 27, 1918. In the Superior Court the action was tried before White, J. The defendant received and cashed the plaintiff's check for $500 which accompanied the letter described in the opinion.

Contract for $600, money alleged to have been had and received by the defendant to thex plaintiff’s use. Writ dated March 6, 1917. In the Superior Court, the action was heard upon an agreed statement of facts by King, J., without a jury. Material facts are described in the opinion. The judge found the facts as they were agreed to and reported the action to this court for determination. The case was submitted on briefs.

<p>Bill nsr equity, filed in the Superior Court on May 27, 1919, and afterwards amended, against Simon Manufacturing Company and Moses Goldman.</p> <p>The allegations of the bill as amended were in substance as follows:</p> <p>On or about December 23, 1918, the plaintiff obtained a final decree in the sum of $11,766.76 against the defendant Simon Manufacturing Company, which remained unsatisfied in the sum of $7,396.53. On or about March 1, 1915, and up to October 4, 1915, the Simon Manufacturing Company, intending to defraud, defeat and delay its creditors, particularly the plaintiff, transferred money in the form of checks and money in specie without any consideration to the defendant Moses Goldman with the intention of defrauding as aforesaid, the defendant Goldman, well knowing such purpose and actively participating therein, "and now the Simon Manufacturing Company is a naked corporation shorn of all its assets and has no property that can be attached or taken on execution in an action at law that will satisfy any judgment that might be rendered against it.” The defendant Goldman had no property that might be reached and applied to satisfy any decree that might be entered for the plaintiff in this cause except thirty-six shares of stock in a corporation known as the Simon Coat Company.</p> <p>The prayers of the bill were for injunctive relief pendente lite and that the defendant Goldman be ordered to account to the plaintiff for all checks and money received by him from the Simon Manufacturing Company and to satisfy such decree as might be entered; and for general relief.</p> <p>The defendant Goldman demurred to the bill as amended. The demurrer was heard by Lawton, J., and by his order an interlocutory decree was entered overruling it. The pleadings then having been completed, the suit was referred to a master. Findings of the master relating to the disposition made of funds of the Simon Manufacturing Company in the hands of Goldman, described in the opinion, after the incorporation of the Simon Coat Company, were as follows:</p> <p>“The Simon Coat Company'started with no bank account of its own, and no working capital other than the $2,235.26 in Goldman’s hands as above. Up to the middle of February, 1916, when, the merchandise creditors of the Simon Manufacturing Company having been paid in full, the Simon Coat Company started a bank account of its own, the funds were all handled by Goldman as before, all cash receipts, whether from its accounts receivable or those of the Simon Manufacturing Company, being turned over to Goldman, and deposited by him in his individual account at the International Trust Company, against which, as before, he drew his personal checks in payment of debts of both the old and new companies. In this way, after the organization of the Simon Coat Company, the $5,300 worth of notes and accounts receivable of the Simon Manufacturing Company above referred to were all collected, and its merchandise creditors were paid therefrom in full ($4,175.17), in order to maintain the credit of the Simon Coat Company and insure its supply of merchandise; while nothing was paid the money creditors of the Simon Manufacturing Company, with the exception of $300 paid by Goldman to one of them on account of the claim.”</p> <p>Other material findings of the master are described in the opinion. The master’s report having been confirmed, the suit was heard by Lawton, J., by whose order a final decree was entered for the plaintiff as described in the opinion. The defendant Goldman appealed.</p> <p>The case was submitted on briefs.</p>

Bill in equity, filed in the Superior Court on March 1, 1918, and afterwards amended, against Simon Manufacturing Company, Simon Coat Company, Estelle Simon, Moses Goldman, Federal Trust Company and International Trust Company, seeking to enforce collection of a claim of the plaintiff as an indorser for accommodation of a note for $2,500 of one Berman against Simon Manufacturing Company, a prior indorser for accommodation.

<p>Bill in equity, filed in the Superior Court on August 6, 1919, by all of the fifteen heirs at law and next of kin of Collins Morse, late of Natick, for the termination of the trust under his will, described in the opinion. Ten of the plaintiffs, besides being heirs at law of Collins Morse, were, through wills, successors in title to the burial lot in Dell Park Cemetery, formerly of Louisa M. Rockwood, where Collins Morse was buried as described in the opinion.</p> <p>The bill alleged that the trust created by the will had failed, and prayed that the defendant account to the plaintiffs for the income of the trust and convey to them the trust property.</p> <p>The defendant demurred. The demurrer was heard by Fox,.!., and was overruled, and the judge reported the suit upon the bill and demurrer to this court for determination, the bill to be dismissed if the demurrer should be sustained; otherwise, a decree to be ordered for an accounting and for conveyance to the plaintiffs in accordance with the prayers of the bill.</p>

<p>Contract, with a declaration in two counts, the first alone being material and being for $850 "for work and labor performed at the rate of $50 per month from January 1, 1915, to June 1, 1916, together with interest.” Writ dated September 29, 1919.</p> <p>The answer was a general denial.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies. Proximate Cause.</p> <p>If, upon the hearing of a claim under the workmen’s compensation act by an insurance solicitor and collector, it appears only that the claimant in the course of his employment, while carrying a “grip” in his left hand, stepped with his right foot to the ground from a street car and that his ankle turned over, and it does not appear what caused the ankle to turn, the causative relation between the claimant’s employment and the injury is left remote and speculative, and the claim must be dismissed.</p>

<p>Slander. Damages, In tort. Agency, Liability of principal for slander by agent. Joint Tortfeasors. Practice, Civil, Verdict.</p> <p>In an action of tort for slander in speaking certain words charging theft, where there is evidence tending to show that the defendant spoke the words substantially as charged in the declaration and the evidence is controverted, it is a. question of fact on all the evidence what was said on the occasion described in the declaration.</p> <p>An action of tort for slander in speaking certain words charging theft may be maintained, although the words were spoken in response to a request by the plaintiff for reasons why she was being discharged from employment, if it appears that they were spoken in bad faith, with ill will and malice; and, where the defendant testified that he was “ a little angry,” and that, when he discharged the plaintiff, he did not believe that she had stolen anything and the jury found that he accused her of theft substantially as alleged in the declaration, they were justified in finding further that the words were spoken with ill will and malice and in finding for the plaintiff.</p> <p>Evidence in an action of tort for slander which tends to show that the words were spoken in the French language and were heard by several fellow employees of the plaintiff and by two police officers who understood French, will warrant a finding of publication of the slander.</p> <p>In an action of tort for slander, it is not necessary to prove that the exact words charged in the declaration were spoken: it is enough if it is proved that words were spoken in substance as alleged.</p> <p>Mental suffering caused by the publication of a slander charging a crime is a proper element of damage which the plaintiff is entitled to be compensated for in an action of tort for slander.</p> <p>At the trial of an action of tort against a woman for slanderous words charging a crime spoken of the plaintiff by the husband of the defendant, it appeared that the words were spoken by the husband when, in obedience to orders of the defendant, he discharged the plaintiff from employment in the defendant’s store, where he was employed as assistant manager. Held, that a finding was warranted that the words were spoken by the husband while acting as an employee of the defendant and within the scope of his employment.</p> <p>If a husband, while acting as an employee of his wife and within the scope of his employment, utters slanderous words of another, the person slandered may maintain separate actions of tort against the husband and against the wife, and may recover the full amount of his damage in each action, although there can be but one satisfaction in damages.</p>

<p>Agency, Existence of relation. Motor Vehicle.</p> <p>At the trial of an action by an administrator against the owner of a motor car for causing the death of the plaintiff’s intestate, there was evidence that one, who had no regular employment but did “jobs, driving or repairing for persons who asked him” and had a workshop where he did repairing, was employed by the defendant to drive him in the car from Lynn to Gloucester and return, then from Lynn to Lawrence and return, all on the same day; that on the return from the last trip it was discovered that the car needed repairing; that the owner, after the car was returned to the garage, caused another person to drive it back to the repair man, to whom it then was delivered for repair; that nothing was said as to compensation and there was no evidence of an agreement such that the defendant could not stop the work at any time and give the work to another; that the repair man kept the car four or five days when, as he was driving it on a street “to tune it up,” he ran into and caused the death of the plaintiff’s intestate. Held, that there was no evidence warranting a finding that the repairer was a servant or agent of the defendant when the accident occurred.</p>

<p>Certification to the Superior Court, under the provisions of the workmen’s compensation act, of a decision, with necessary papers in connection therewith, of the Industrial Accident Board that James Walkden, the claimant, received an injury on July 1, 1919, in the course of and arising out of his employment by Passaic Cotton Mills; and, on the question “whether the insurer or subscriber had notice or knowledge of the injury,” "that the employee informed Tanner, the second hand, his direct foreman and the agent for the subscriber on Thursday, July 3, 1919, the first day upon which he had absented himself from work because of the injury of July 1, that he could not go to work,” that the "subscriber had knowledge of the injury as soon as practicable after the happening thereof,” and that the claimant was entitled to compensation.</p> <p>In the Superior Court, by order of Wait, J., a decree was entered in accordance with the decision of the Industrial Accident Board. The insurer appealed.</p>

<p>Contract, Implied. Evidence, Relevancy and materiality.</p> <p>In an action upon a quantum meruit for the value of labor and materials furnished in the construction of a building upon land of a third person, it appeared that the owner of the land had given to the defendant, a corporation, a mortgage upon the premises to secure the repayment of sums which the defendant had agreed to advance at certain stages of the construction of the building under specified conditions, that the owner had assigned to the plaintiff his right to a balance of payments provided for in the agreement; that the building was then in an unfinished state; that, following a conversation between the plaintiff and the defendant’s treasurer, the treasurer prepared and signed and sent to the plaintiff a new agreement by which the plaintiff was to complete the contract and receive the remaining payments from the defendant; that the plaintiff made some alteration in the contract, signed it as altered and returned it to the treasurer, who refused to approve the alteration, repudiated the contract and so notified the plaintiff, and that the plaintiff then stated that he would see the treasurer about it. Thereafter, without further conference with the defendant, the plaintiff furnished labor and materials toward the completion of the building and received certain payments from the defendant which in all were $100 greater in amount than the sum of payments required in the agreement originally made by the defendant with the owner of the land. Held, that 1</p> <p>(1) A finding was warranted that the defendant’s treasurer reasonably might assume that payments made to the plaintiff were under the provisions of the contract made with the owner, the plaintiff’s assignor;</p> <p>(2) A finding was not required that the defendant permitted the plaintiff to furnish the labor and materials, with the expectation that the defendant would pay him therefor, irrespective of the contract made with the plaintiff’s assignor;</p> <p>(3) A finding for the defendant was warranted.</p> <p>The declaration in the action above described also contained a count for breach of the alleged new agreement between the plaintiff and the defendant, and evidence was admitted against objection of the plaintiff, tending to show the assignment to the plaintiff by the owner of the land of his right to payments to be made under his construction loan agreement with the defendant, and that the defendant did not assent thereto, that the plaintiff prepared a modification of the construction loan agreement and that the negotiations with regard thereto resulted in the drafting of the new contract between the plaintiff and the defendant, to which the defendant did not assent. Held, that the evidence properly was admitted.</p>

<p>Contract for $587.35 upon an account annexed for half of a loss sustained by the plaintiff in an alleged joint enterprise described in the opinion. Writ dated July 3, 1919.</p> <p>In a declaration in set-off, the defendants claimed that the plaintiff owed them $63.35, for wool blankets sold and delivered.</p> <p>In the Superior Court the action was tried before Fox, J. Material evidence and exceptions saved by the defendants are described in the opinion. The jury found for the plaintiff in the sum of $526.07; and the defendants alleged exceptions.</p>

<p>Tort for personal injuries and damage to the plaintiff’s horse and wagon caused by a collision with a motor vehicle owned by the defendant and negligently operated by his servant or agent. Writ in the Municipal Court of the City of Boston dated December 12, 1919.</p> <p>On removal to the Superior Court, the action was tried before Morton, J. Material evidence and exceptions saved by the defendant are described in the opinion. There was a verdict for the plaintiff in the sum of $875; and the defendant alleged exceptions. R. W. Frost, for the defendant.</p>

<p>Negligence, Street railway, In use of highway.</p> <p>In an action against a street railway company for personal injuries received when the plaintiff, a woman, was run into by a moving electric street car of the defendant as she approached it with the purpose of boarding it, there was evidence tending to show that there was a white post indicating a stopping place where the plaintiff started to approach the car; that the nearest street railway rail was eighteen feet from the curb whence she started; that, just before reaching the white post, the car rounded a curve which caused the rear end to swing outward about four feet from the rail; that, as the car approached the post, its speed slackened and, when its front end was opposite the post, the plaintiff and others started from the curb to take it; that, as the plaintiff was walking toward the moving car, some one behind her spoke to her and she turned her head away from the car, but continued walking and proceeded to within four feet of the car and was struck by the rear end as it swung out in going around the curve. The door of the car had not been opened and, in going around the curve, the car “put on a spurt.” Held, without determining whether a finding that the plaintiff was in the exercise of due care was warranted by the evidence, that a finding of negligence on the part of the motorman was not warranted, because it did not appear that he had any reason to expect that the plaintiff would approach to within a dangerous proximity to the car.</p>

<p>Insurance, Workmen’s compensation: cancellation. Workmen’s Compensation Act, Cancellation of insurance.</p> <p>In a proceeding under the workmen’s' compensation act, the insurer contended that, previous to the time of the claimant’s injury, the insurance had been can-celled. It appeared that the policy provided, in one clause called “H,” that it might be “cancelled at any time by either of the parties hereto upon written notice to the other party stating when thereafter cancellation shall be effective,” and, in another clause, that if the assured should neglect to make certain statements as to employees to the insurer or to pay premiums as stipulated, the insurer at its option might cancel the policy upon ten days’ notice to the assured. On August 26, the insurer gave to the assured a notice in writing as follows: “We have been advised by our home office that they are no longer willing to carry your insurance and have requested that we effect cancellation of your policy. . . . We, therefore, notify you that your policy ... is cancelled effective at 12 o’clock noon, standard time, August 28, 1919,' and . . . [the insurer] will not be liable for any accidents occurring subsequent to that time.” The claimant was injured on August 30. The Industrial Accident Board ruled that the burden of proving cancellation of the insurance was on the insurer, that, if cancellation was attempted under the second clause described above, the notice was insufficient, that the insurer had not shown under which clause the cancellation was attempted, that the burden upon the insurer therefore was not sustained and that compensation should be paid. The Superior Court entered a decree accordingly. Upon appeal, the claimant contended that the' finding of the board was one of fact and could not be reversed. Held, that</p> <p>(1) The essential facts not being in dispute, the question, whether cancellation was effected, was a matter of law;</p> <p>(2) The notice of cancellation was given under clause “H,” and was effective;</p> <p>(3) It was enough that the notice was valid under one of the provisions of cancellation which was not repugnant to the other terms of the policy;</p> <p>(4) The employee’s assent to the cancellation was not necessary;</p> <p>(5) The question, whether, under St. 1911, c. 751, Part IV, § 21, as amended by St. 1912, c. 571, § 16, the employee had any remedy by reason of his employer’s failure to notify him of the cancellation of his insurance, was not before the court.</p>

<p>Tax, Abatement. Practice, Civil, Petition for abatement of tax: commissioner’s report; Findings by judge; Exceptions. Evidence, Commissioner’s report, Presumptions and burden of proof.</p> <p>At the hearing in the Superior Court of a petition under St. 1909, c. 490, Part I, § 77, for the abatement of a tax, the only evidence was the report of a commissioner, appointed under § 79 of the statute, which did not include a report of evidence before the commissioner and which was introduced in evidence without objection. The report included findings that the assessors, in making the assessment objected to, were improperly influenced by political events attending their election and also findings as to the location and character of the land and the income derived from it, as well as to sales of land in the vicinity and as to the fair cash value of the land at the time the assessment was made, which showed an overvaluation by the assessors. The judge ruled that the finding of the commissioner as to the assessors being improperly influenced in their action by events connected with their election was incompetent and irrelevant as to the matter at issue in the proceeding and that he did not.consider it, and found the fair cash value of the land to be as reported by the commissioner and ordered an abatement accordingly. Upon exceptions by the respondent, it was held, that</p> <p>(1) It could not be ruled as a matter of law that, the commissioner’s findings as to the assessors being improperly influenced by events connected with their election being disregarded by the judge, the petitioner had not sustained the burden of proof;</p> <p>(2) The finding of the judge, being based on the findings of the commissioner as to fair value, could not be set aside as a matter of law;</p> <p>(3) The report of the commissioner having been admitted without objection, the question of the admissibility of his findings as to the assessors being improperly influenced by events connected with their election was not open upon the respondent’s exceptions.</p>

<p>Evidence, Res gestae, Relevancy and materiality. Damages, Mitigation. Assault and Battery. Practice, Civil, Judge’s charge.</p> <p>At the trial of an action of tort for assault and battery, there was evidence tending to show that, just previous to the assault, the defendant was on either the lawn or the sidewalk in front of the plaintiff’s house; that the plaintiff’s wife was walking along the piazza of the house talking in a loud voice to the defendant; that she could be heard for a distance of one hundred feet; that the plaintiff was approaching the house in an automobile and heard the loud talking, and that his wife called to him, "Put this man off the lawn, he is making a disturbance.” Subject to an exception by the plaintiff, the defendant was allowed to testify that, when the plaintiff was within one hundred feet of his wife, she said to the defendant that he was a pauper, did not own a dollar of his property and had a half-starved daughter. The defendant’s evidence further tended to show that the plaintiff struck him and that he struck the plaintiff in self-defence. Held, that the evidence objected to by the plaintiff was admissible, both as a part of the res gestae, and also in mitigation of damages.</p> <p>At the trial of the action above described, the plaintiff’s evidence tended to show that, before and at the time of the altercation, the defendant was on the plaintiff’s lawn, and the defendant’s evidence tended to show that at first he was on the sidewalk in front of the plaintiff’s lawn and that he backed upon the lawn when attacked by the plaintiff. Subject to an exception by the plaintiff, the judge charged the jury in substance that, while the question, whether the defendant was or was not on the plaintiff’s lawn, might throw some light on who was telling the truth, they should deal with the question as to whether the blow of the defendant was struck unjustifiably apart from any considerations as to whether he was or was not a trespasser. Held, that the exception could not be sustained.</p>

<p>Contract, under § 60, a, b, of the national bankruptcy act, as amended, by the trustee in bankruptcy of Daniel F. McCarthy, junior, for $5,000 alleged to have been paid by the bankrupt to the defendant as an unlawful preference within four months of the filing of the bankruptcy petition. Writ dated June 23, 1917.</p> <p>In the Superior Court the action was tried before Bell, J. Material evidence is described in the opinion. At the close of the evidence, on motion of the defendant, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for deceit in the sale of land. Writ dated November 19, .1915.</p>

<p>Mortgage, Redemption. Equity Pleading and Practice, Report of facts found by judge, Appeal.</p> <p>A suit in equity, where the bill contains allegations that the defendant foreclosed a mortgage upon premises owned by the plaintiff, himself purchased at the sale in foreclosure and afterwards agreed to waive the foreclosure if the plaintiff would pay a certain sum as the expenses of the proceedings, and the plaintiff in the bill offered to pay the amount due on the mortgage note and the expenses of foreclosure and sought redemption, cannot be maintained where the judge finds that, after the mortgage was foreclosed and the defendant had purchased at the sale but before he had recorded his deed, he agreed with the plaintiff that, if the mortgage debt and foreclosure expenses were paid, he would reconvey the property to the plaintiff, that it was understood that the payment of the mortgage by the plaintiff would be made within a reasonable time, that the plaintiff had paid the expenses of foreclosure, and that more than a reasonable time had gone by and that the plaintiff had done nothing about paying the mortgage debt.</p> <p>If, after a judge who heard a suit in equity has voluntarily filed a statement of his findings of fact, one of the parties desires further findings on certain details, he should ask therefor specifically; and a mere “request” for “a report of the facts as found by the court” properly may be denied.</p>

<p>Contract upon a policy of insurance of a title to real estate described in a mortgage. Writ dated December 29, 1916. ■</p> <p>The action was referred to an auditor and later was tried before Dubuque, J., upon the auditor’s report and other evidence. Material evidence at the trial is described in the opinion.</p>

Contract with a declaration in two counts. The allegations of the first count were in substance that about June 24,1918, the plaintiff entered into a contract with the defendant, by which the defendant agreed to purchase a certain tract of woodland located in Pelham in the State of New Hampshire, that thereafter the defendant and the plaintiff would jointly cut and sell the wood on the land for the common benefit of both parties, that the defendant would pay the original…

<p>Certification to the Superior Court, under the provisions of the workmen’s compensation act, of a decision of the Industrial Accident Board and papers in connection therewith, affirming and adopting findings of a single member of the board, to whom had been referred a claim of the widow of John J. O’Donnell, an employee of C. H. Cronin, that O’Donnell’s death was caused by sclerosis of the coronary arteries resulting from assimilation of lead which occurred during his employment “as a painter, [plumber] . . . that the final assimilation which caused his death occurred during his employment with” the subscriber, and that compensation should be awarded to the claimant.</p> <p>In the Superior Court by order of Sisk, J., a decree was entered in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p> <p>The case was submitted on briefs.</p>

<p>Waiver. Contract, Performance and breach.</p> <p>Waiver is an intentional relinquishment of a known right.</p> <p>An arbitrator, to whom controversies relating to the performance of certain contracts for the building of cottages and camps for a corporation had been referred by agreement of the corporation and the contractor, found that the contract was entered into on September 1 of a certain year and was for the building of one hundred and twenty-five small and twenty-five large camps to be completed by the following February 1; that the contractor seldom asked for locations and that, when he did, he was promptly furnished them by the corporation; that at no time before frost entered the ground was he hindered in his work by not having sufficient sites designated to him; that not more than seventy-four locations had been furnished to the contractor before January 1, and that frost entered the ground about December 15, making further work in laying foundations impracticable after that date. The arbitrator also found from the foregoing facts that the corporation had waived all right to hold the contractor responsible for his failure to erect more than seventy-four camps under the contract. Held, that</p> <p>(1) The duty of pointing out sites rested upon the corporation;</p> <p>(2) It could not be said as a matter of law that there was not sufficient basis for the finding of waiver.</p>

<p>Petition, filed in the Superior Court on November 20, 1919, under St. 1916, c. 269, § 20 (now G. L. c. 62, § 47), appealing from a refusal of the Tax Commissioner to abate an income tax assessed upon the business income for the year 1917 of the petitioner as a resident of Haverhill in this Commonwealth, the petitioner alleging that he was a resident of Milford in the State of Connecticut.</p> <p>The petition was heard by Lawton, J., who found the facts described in the opinion, ordered that the petition be dismissed, and reported the case for determination by this court.</p> <p>The case was submitted on briefs.</p>

<p>Contract, Performance and breach, Building contract. Damages, For breach of contract.</p> <p>In an action by a building contractor against the owner of real estate upon a contract for the construction of a dwelling house thereon, the plaintiff contended that the contract was terminated unjustifiably by the defendant, but he made no claim to damages by reason of loss of expected profits and there was no evidence that actual expenditures and outlays made by him toward carrying out the contract were extravagant and unnecessary. The judge charged the jury that the plaintiff was “entitled to recover what it cost him, or what his loss was, in other words. You will determine how much he expended in the construction of this work, what he put into it and the cost of what he put into it, what money he was out of pocket on account of this work.” Held, that no error appeared in the part of the charge above quoted.</p> <p>At the trial of an action by a building contractor against the owner of real estate, where the declaration contained counts upon a contract for the building of a dwelling house and a count upon a quantum meruit for work done and materials furnished in such building, the judge charged the jury, that they might “determine whether there was bad faith which went to the essence of the building itself, which affected it finally in its value, or whether the bad faith upon the evidence here is confined to two particular things, the roof and the "chimney. If it is confined to them and does not affect the rest of the building, . . . [[the plaintiff] can’t recover, of course, as far as those items go, but if in all other respects he erected the building in good faith, and his departure was not a blamable departure from the requirements of the contract, he can recover for ’ the benefit conferred upon . . . [[the defendant^, if there was benefit.” The jury found that the work of the plaintiff on the chimney and on the roof was not done in good faith and found generally for the plaintiff. Held, that the instruction to the jury was erroneous in that it permitted the jury to find for the plaintiff although they found that the plaintiff in bad faith had departed from the contract in particulars not trivial.</p> <p>A building contractor cannot recover from the owner of real estate payments specified in a contract providing for the erection by the plaintiff of a dwelling house upon land of the defendant, nor upon a quantum meruit for work done and materials furnished upon the dwelling house, if in bad faith he departed from the requirements of the contract in particulars not trivial.</p>

<p>Partnership. Contract, Construction. Equity Jurisdiction, Partnership.</p> <p>By unambiguous provisions of an agreement in writing, L, one of four partners engaged in the insurance business under the firm name, L and Company, specifically sold to the other three partners all of his interest in the partnership and in the “good will and the firm name therein” for the consideration of a fixed annual salary during a certain term and a stated percentage of the net profits of the business of any year in excess of $50,000, the salary to be decreased if the profits were less than that amount and to cease entirely at the option of the other three if the profits fell below $20,000, the three agreeing to indemnify L against loss, and the agreement stating that “one of the principal purposes for executing this new partnership agreement is to carry out an often expressed wish of said L to retire from active interest in the insurance business . . . and accordingly this sale of all of L’s ownership in the shares, or percentages, as well as of the good will and name of the business, including furniture and fixtures is made.” Held, that under the agreement L ceased to be a copartner with the other three.</p> <p>After the execution and delivery of the contract above described and the death of one of the three, L could not maintain a bill in equity to compel a liquidation of the partnership nor to enjoin the remaining two from selling, with the assent of the executor of the will of the deceased partner, a portion of their shares in the partnership to one whom they accepted as a new partner, and from continuing the business with such new partner under the old firm name.</p>

<p>Mortgage, Of real estate: statutory form, foreclosure. Equity Jurisdiction, To enjoin foreclosure of mortgage.</p> <p>Where a mortgage of real estate in the statutory form set out in St. 1912, c. 502, § 6, contains also a provision that the mortgagor “shall pay when due and payable all taxes, charges and assessments, to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein, or on the debt or obligation seemed thereby,” such additional agreement is included within the scope of the statutory condition and power.</p> <p>In a suit in equity to enjoin the foreclosure, for non-payment of taxes, of the mortgage above described, which seemed the payment of $500,000, a finding by the judge that the mortgagee had not waived the additional provision was held not to have been plainly wrong; and, the whole amount of $500,000 having become due upon the breach of the condition in the non-payment of the taxes, so that the breach was not merely technical, it also was held, that the mortgagor was bound by the contract which he had made, although the record disclosed a case of hardship to him; and the suit was dismissed.</p>

<p>Summary process for the possession of a suite of rooms in an apartment building on Beacon Street in Brookline. Writ in the Municipal Court of Brookline dated May 6, 1920.</p> <p>On appeal to the Superior Court, the facts were agreed upon by the parties, from which it appeared that the plaintiff, the successor' in title to the lessor named in the lease described in the opinion,! attempted to terminate the defendant’s tenancy by a notice given on April 1,1920, to quit the premises on May 1,1920. Other material facts are described in the opinion. At the request of the parties, the action was reported by Hall, J.,- to this court for determination upon the pleadings and the agreed facts.</p>

■ Contract for $200 alleged to be due for professional services as an attorney at law rendered to the defendant by the plaintiff. Writ in the Municipal Court of the City of Boston dated January 21, 1920.

<p>Bill in equity, filed in the Superior Court on December 19, 1918, and afterwards amended, seeking to have declared void a sale of premises of the plaintiff Murphy in foreclosure of a second mortgage thereon given by the plaintiff Murphy to the plaintiff Clapp and by him assigned, with an indorsement by the plaintiff Clapp of the mortgage note in blank, to the defendant.</p> <p>The suit was referred to a master. He found, among other findings, that the property was subject to a first mortgage of $1,000, the mortgage alleged to have been improperly foreclosed by the defendant being a second mortgage of $200, and "that the property was worth at least $2,000 as a fair market value at the time of the foreclosure sale. At the time of the hearing in the Brockton Police Court on the suit against Clapp on the note [for an alleged deficiency after the foreclosure] there was some talk about settlement and a reconveyance. The lowest figure mentioned by defendant as required to obtain a reconveyance was $385; but I find that no actual offer to reconvey was made stating any definite figure. At the time of this conversation there was due on the note the $200 principal; about $25 for interest, of which $8.80 had been tendered to the defendant a few days after the sale; that the defendant had paid $30 in interest on the first mortgage, and $38.43 and interest thereon for taxes for 1917, and $5.50 for insurance. The charge of Mr. Anthony for the foreclosure was about $50. The defendant had been to Abington eight or nine times. The total of these items is not over $375; and the defendant had collected several months’ rent at $12 a month; so, if there had been an offer to re-convey at $385 the amount demanded was more than the amount due on the note together with the defendant’s expenditures in the matter.”</p> <p>Other material findings of the master are described in the opinion. Exceptions of the defendant to the master’s report were overruled in an interlocutory decree from which no appeal was taken. The suit was heard by Bishop, J., upon the pleadings and the master’s report, and by his order a final decree was entered in the following form: “The above entitled cause came on to be heard on the plaintiff’s motion that the master’s report be confirmed and final decree entered thereon, and was argued by counsel, and thereupon, upon consideration thereof it is hereby ordered, adjudged and decreed that the defendant Gardner shall assign to the plaintiff Clapp the note and mortgage upon the plaintiff Clapp paying him the amount of principal and interest due on said note together with reimbursement to the defendant for his payment of taxes, repairs, insurance and interest on the first mortgage amounting to $288.93 less $72 collected by the defendant as rent; and upon the plaintiff Murphy executing and delivering to the plaintiff Clapp a new mortgage and note for the amount paid by him to the defendant, the plaintiff Clapp shall discharge the old mortgage and cancel the old note.”</p> <p>The defendant appealed.</p>

<p>Trust, What constitutes. Equity Jurisdiction, To establish trust, condition or life estate. Deed, Acknowledgment. Equity Pleading and Practice, Master.</p> <p>A bill in equity, based upon alleged rights of the plaintiff arising out of a “trust” or "condition” or “life estate” under which real estate of the plaintiff’s great-grandfather was given by him to his children and upon the death of the survivor of them would be received by the plaintiff as his only heir at law then living, cannot be maintained where a master, to whom the suit was referred, in a report which did not include a report of the evidence, finds that “the plaintiff claimed that a writing alleged to be a will of” his great-grandfather, “which was never probated, should be admitted in evidence as proof of the ‘condition or ‘trust’ or ‘life estate’ in which he asserted the children of” the great-grandfather “took his real estate. This paper was marked for identification, and was excluded by the master;” and further finds that the great-grandfather died intestate and that “no condition of any kind was imposed upon the real estate . . . and the plaintiff . . . took no property as the heir of” his great-grand-j father.</p> <p>The circumstance that a deed was acknowledged before the grantee does not render the conveyance void.</p>

<p>Two bills in equity, filed in the Superior Court on April 1, 1920, each against the same incorporated labor union and some of its officers and agents, to enjoin unlawful interference on the part of the defendants with the plaintiff’s business.</p>

<p>Way, Want of railing. Pleading, Civil, Declaration.</p> <p>A declaration in an action of tort alleged that the plaintiff was “a pedestrian . . . walking ... on West Main Street in the town of Ayer, and when at or near that portion of the sidewalk opposite the defendant’s premises, and of which said premises was an abutter on the highway, that the said plaintiff fell owing to the negligence of the defendant . . . who constructed a sidewalk in front of said premises in such a negligent manner in that the said sidewalk had steep projecting banks or sides that formed a hole or declivity, constituting a defect and making said sidewalk unsafe and dangerous and of such an unusual character that a rail or barrier should have been put up to make the use of said sidewalk reasonably safe for the purpose of travel . . . the defendant had control over said portion of the sidewalk and it was his duty to make the same reasonably safe for the purpose of public travel. Notice of the time, place and cause of said accident was given by the plaintiff to the defendant.” The defendant demurred. The demurrer was sustained, judgment was entered for the defendant, and the plaintiff appealed. Held, that</p> <p>(1) No statement in the declaration disclosed whether the sidewalk was a public or a private way;</p> <p>(2) If it be assumed that the sidewalk was a private way, there was no allegation showing that the plaintiff was rightfully using it;</p> <p>(3) If it be assumed, from the use of the word “highway,” that the sidewalk was a public way, the obligation to remedy defects and to supply a railing was not the defendant’s;</p> <p>(4) Even though the defendant negligently constructed the sidewalk originally and it then was taken over by the town and the defects thereafter remained, the defendant would not be liable for its continued maintenance in a defective state;</p> <p>(5) The plaintiff, under any reasonable interpretation of the declaration, failed to allege the breach of any legal duty owed to him by the defendant; and the demurrer was sustained rightly.</p>

<p>Two actions OF tort, the first for personal injuries and the second for damage to a motor car alleged to have resulted from a collision with a motor car owned by the defendants and negligently operated by their servant or agent. Writs dated December 5,1917.</p> <p>In the Superior Court, the actions were tried together before Dubuque, J. Material evidence is described in the opinion. At the close of the evidence, the defendants moved that verdicts be ordered in their favor. The motions were denied. The jury found for the plaintiff in the first action in the sum of $3,000, and for the plaintiff in the second action in the sum of $600; and the defendants alleged exceptions.</p>

<p>Replevin to recover four motor trucks. Writ dated December 18,1917.</p> <p>In the Superior Court, the action was tried before Chase, J. Material evidence at the trial and exceptions saved by the plaintiff are described in the opinion. The jury found for the defendant; and the plaintiff alleged exceptions, which, after the resignation of Chase, J., were allowed by Hammond, J.</p>

<p>Equity Jurisdiction, To reach and apply property conveyed in fraud of creditors. Equity Pleading and Practice, Appeal. Corporation, Corporate identity.</p> <p>Upon an appeal from a final decree in a suit in equity establishing a debt owed to the plaintiff from the principal defendant and ordering that execution issue therefor and that, if the execution be not paid, a special master should be appointed to sell all the interest of the principal defendant in certain shares of capital stock in a certain corporation, also a defendant, "and in and to all the goods, chattels, furniture, stock and fixtures standing in the name of the” corporation, and that the principal defendant and the corporation “make and deliver a written conveyance of said property to the purchaser at” the sale, it appeared that there was no allegation in the bill that the principal defendant had conveyed property to the corporation in fraud of creditors or that the corporation had received property from him without consideration. At the hearing it appeared that the corporation was organized by the principal defendant at a time when he was heavily involved financially, its capitalization being $5,000 in one hundred shares, of which the principal defendant owned one share, his wife eleven, and two other individuals one each, the principal defendant having paid therefor $100 in cash, the wife over $100 and some furniture, and the two other individuals having rendered services; that the corporation assumed the debts of the principal defendant and afterwards carried on business at a profit. Held, that the decree should be modified so that the suit should be dismissed as to the corporation and the decree reversed as to the orders of sale of the personal property standing in the name of the corporation, it not appearing that any fraud was involved in the conveyance to the corporation.</p> <p>Where an individual debtor organizes a corporation to which he conveys personal property used by him in his business, the corporation assuming his debts, a creditor of his cannot maintain a suit in equity to compel the sale by a special master of the property so conveyed and its conveyance to a purchaser at the sale by the corporation as well as by the debtor, even if it be shown that the debtor owns all the capital stock of the corporation, unless it also be shown that the conveyance to the corporation was in pursuance of a fraudulent purpose, it being the settled law of this Commonwealth that, in the absence of fraud, even ownership by an individual of all the capital stock of a corporation and the absolute control of its affairs do not make it and the individual identical.</p>

<p>Broker. Contract, Implied, Performance and breach.</p> <p>Where, at the trial of an action by a real estate broker for a commission alleged to have been earned in procuring for the defendant a customer to purchase real estate of the defendant, there was evidence that the plaintiff procured a prospective purchaser who, with the plaintiff and the defendant, met at the plaintiff’s office, where an instrument in the form of an agreement by the defendant to sell and by the prospective purchaser to buy the real estate was made out by the plaintiff and was submitted to the parties; that its terms were mutually agreeable; that the prospective purchaser desired to show the instrument to his lawyer before signing it and took it away without either party signing it; that the defendant agreed that it should be taken away and that, if it was signed by noon of the next day, he would be at the plaintiff’s office at three o’clock in the afternoon to accept a deposit and would sign the instrument; that at half past nine in the morning of the next day the defendant informed the plaintiff that he did not intend to sell the real estate to the prospective purchaser, but had sold it to another party; that on the same day at noon the prospective purchaser returned the agreement to the plaintiff with his signature and the deposit. There was no evidence of fraud on the part of the defendant. Held, that</p> <p>(1) The parties intended to be bound only by the formal instrument and not by the preceding oral arrangements;</p> <p>(2) The plaintiff to recover must prove that the customer whom he procured was ready, willing and able to pinchase on the defendant’s terms at a time before the plaintiff’s authority was revoked;</p> <p>(3) So long as the terms of the agreement remained in a state of qualified acceptance, the customer was not ready, willing and able to become a purchaser on the defendant’s terms;</p> <p>(4) In the absence of fraud, the defendant had a right to discharge the plaintiff at any time before the customer had definitely accepted the terms of the instrument, without incurring any obligation to pay for services rendered by the plaintiff in procuring the customer.</p>

<p>Trust, Construction. Devise and, Legacy.</p> <p>A testator who died leaving a widow and six children, four being of age and two being minors and sons by a second marriage, by two succeeding paragraphs of his will gave to the widow in trust for the benefit of the older minor son real estate worth about $26,500, and for the benefit of the younger minor son real estate worth about $35,300, the value of his entire estate being about $93,000. The trust provisions were the same, muiatis mutandis, and were in substance that the income from the property during the minority of the beneficiary should be “devoted to his care and education and after he shall have reached the age of twenty-one years the rents and income to be paid unto” the beneficiary “until he shall have attained the age of Thirty years when this trust shall terminate.” There also was a provision in each paragraph that, if the beneficiary therein died before reaching the age of thirty years and unmarried, the trust should continue for the benefit of his brother beneficiary “upon the same terms and conditions.” There was no further provision in the will for the disposition of the property after the beneficiary had reached the age of thirty years. The older of the two beneficiaries died unmarried and intestate at the age of twenty-five years. The younger died at the age of thirty-seven years. Held, that, upon the surviving beneficiary reaching the age of thirty years, the trust terminated and the real estate in both trusts passed as intestate property to the testator’s heirs at law.</p>

<p>Tort for personal injuries received by the plaintiff when, as she was rightfully upon a highway, she was struck by a box which fell from a wagon of the defendant drawn by a runaway horse. Writ dated April 16, 1919.</p> <p>In the Superior Court, the action was tried before Keating, J. Material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant and reported the action-for determination by this court, it being agreed that, if the ruling of the trial judge was wrong, judgment should be entered for the plaintiff in the sum of $500; and, if the ruling was right, judgment should "be entered on the verdict.</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, To enjoin trespass, Damages. Trespass. Deed, Unrecorded. Damages, In equity.</p> <p>In a suit in equity by the owner of woodland to enjoin the owner of adjoining woodland from trespassing upon the plaintiff’s land and cutting trees thereon, a final decree permanently enjoining the defendant and awarding damages to the plaintiff is warranted where a master, to whom the suit was referred and to whose report no exception was taken, found, without a report of the evidence, that the plaintiff was the owner of the premises described in the bill, his “title being under an unrecorded deed . . . which deed was introduced in evidence, without objection, by the plaintiff’s counsel and there was no other evidence of its delivery,” and that the defendant had committed and was continuing trespasses upon the plaintiff’s land.</p>

<p>Tort for personal injuries resulting from a fire in the defendant’s gasoline pump house while the plaintiff, an employee of J. Comer Jones Power and Pump Company, was assisting in installing a new pump. Writ dated July 12, 1918.</p>

<p>Interstate Commerce. Negligence, Federal employers’ liability act.</p> <p>At the trial of an action by a foreman drawbridge tender against a railroad company under the federal employers’ liability act for personal injuries received by the “backfiring” of a gasoline engine when, as the plaintiff by direction of i his superintendent was instructing an assistant foreman, in charge of another .bridge than that of which the plaintiff had charge, in his work and was engaged in the physical work of starting the engine, which was used to operate the bridge and which the assistant was unable to start, it appeared that both the plaintiff and the assistant foreman, while engaged at their regular duties at the bridges of which they respectively had charge, were engaged in interstate commerce, and the plaintiff testified that his superintendent had “told him to show” the assistant foreman ati the other bridge “anything he -knew about, including running the engine, also draw work if there should be any.” Held, that</p> <p>(1) A finding was warranted that the order to the plaintiff contemplated that he should instruct the assistant foreman at the other bridge through actual participation in the work of starting the engine if the assistant foreman was incapable of starting it or of keeping it in motion when started;</p> <p>(2) A finding was warranted that, when injured, the plaintiff was engaged in interstate commerce.</p>

<p>Assignment, Of insurance policy. Insurance, Assignment of policy. Husband and Wife. Bankruptcy.</p> <p>Where, when insolvent, one, whose life had been insured under a policy payable in case of his death to his wife, assigns the policy to secure the payment of a loan of a sum of money equal to one fifth of the amount of the policy, a provision of the assignment being that, in case of the death of the insured, any balance over the amount of the loan and interest should be paid to the insured’s wife, and thereafter, during his life and while insolvent, the insured continued to pay the premiums upon the policy and after his death his estate is declared insolvent and his wife is adjudicated a bankrupt, St. 1907, c. 576, § 73, requires that, after the payment of the loan and interest and after the payment to the administrator of the estate of the insured of four fifths of the amounts paid by the insured while insolvent as premiums, with interest, the balance of the proceeds of the policy should be paid to the trustee in bankruptcy of the widow.</p>

<p>Evidence, Declaration of deceased person. Practice, Civil, Exceptions.</p> <p>It is error for a trial judge to admit evidence as to a declaration of a deceased person, offered under G. L. e. 233, § 65, until he has determined that the declaration was made in good faith, before the commencement of the action and upon the personal knowledge of the declarant.</p> <p>After a preliminary examination of a witness called to testify to a declaration of a deceased person, the trial judge stated, “As far as it devolves upon the court to make preliminary finding I am inclined to think it may be found from testimony that this was made upon the personal knowledge of the declarant, that is for the jury to say. I simply say as far as admissibility is concerned that it is before us, that it is not evidence unless it be considered that it was made by . . . [the deceased], upon his personal knowledge, not what he was told, but what he saw and heard and did himself. With that understanding, that statement, the evidence may stand; ” and the judge stated in his charge, “it is incumbent upon the judge of the court to decide from an investigation, preliminary investigation, that such statements were made in good faith, made before the action was commenced and made upon the personal knowledge of the man who made them and in this case inquiry was had along those lines. . . . We are unable to judge from personal inspection how much credibility to give his testimony but we are obliged, the evidence being before us, we are obliged to receive it and we are obliged to give it such weight as we think it is entitled to have.” Held, that</p> <p>(1) It was clear that the judge did not make the preliminary finding required by the statute;</p> <p>(2) The error so committed was not cured by the charge.</p>

<p>Two actions of tort, the first action being by the administrator of the estate of Margaret E. Crowe for the causing of the conscious suffering and the death of the decedent through the falling of a piazza upon premises let to her by the defendant, alleged to have been due to a defective condition which was permitted to exist by reason of negligence of the defendant; and the second action being for personal injuries received by a guest of the plaintiff’s intestate who was injured by the same accident. Writs dated, respectively, September 10 and September 9, 1918.</p> <p>The actions were tried together before Keating, J. Material evidence is described in the opinion. At the close of the evidence the defendant moved that verdicts be ordered in his favor. The motions were denied. The jury found for the plaintiff in the first action in the sum of $5,000, and for the plaintiff in the second action in the sum of $1,500, and, by agreement of the parties, the judge reported the actions to this court for determination, with the following stipulation: “If the cases were rightly submitted to the jury solely in so far as the issue of liability of the defendant was concerned, judgment was to be entered upon the verdicts; otherwise, judgment was to be entered in both cases for the defendant. The simple issue presented by this report is as to the liability of the defendant upon the . . . evidence [described in the report], which was all the material evidence introduced at the trial upon the question of liability.”</p>

<p>Tax, On legacy or succession.</p> <p>Provisions of the will of one who died in April, 1909, placed the residue of the testator’s property, including his interest in a partnership, in trust with directions to the trustee “to pay over the principal and income thereof” to those persons, except a certain daughter, who, “ at the time of each payment, are the persons who would then be entitled” thereto had the testator died intestate immediately previous to the payment, to permit the interest in the partnership to continue until it ended by limitation with 1918 unless the surviving partners terminated the partnership at an earlier date, and, on the termination of the partnership, to pay over and to distribute the principal of the trust fund to and among those persons, except the daughter named, who would be entitled thereto-had the testator died intestate immediately after the termination of the partnership. A widow and six children, including the excepted daughter, survived the testator. The widow died in 1913. To the time of her death she had received one third of the income of the partnership and each of the five children had received one fifteenth. After the death of the widow and until the termination of the trust by limitation in 1918, each of the five children received one fifth of the whole income. Under St. -1907, c. 563, § 6, the Tax Commissioner valued the principal of the trust at $475,000, also valued the rights of the widow and of the five children to receive income under the will upon the basis of that valuation of the principal, assessed upon each of them a tax of one per cent of the valuation of that right to income, and received payment thereof “on account.” After the death of the widow, an additional tax of one per cent was assessed upon the right of each of the five children to receive additional income which previously had been paid to' the widow. At the termination of the trust, the principal was valued by the Tax Commissioner at $547,040, and, the interest of each of the five children therefore being in value more than $100,000, an additional one per cent tax was assessed upon the right which each of them had had to receive income from the fund, and a tax of two per cent of one fifth of $547,040 was also assessed upon the right of each of them to receive one fifth of the principal of the trust. Upon appeals by the five children, it was held, that</p> <p>(1) By the express language of St. 1907, c. 563, § 6, the right of the widow and of the five children to receive income during the continuance of the partnership, having vested in possession at the death of the testator, was subject to taxation;</p> <p>(2) The interests of the five children in the principal of the trust were subject to the tax at the termination of the partnership and not before;</p> <p>(3) The value of the principal fund at the time of distribution, and not that at the time of the testator’s death, was to be taken as the basis of the computation of the tax upon the rights of the children in the principal;</p> <p>(4) It was proper for the Tax Commissioner to make a first assessment of one per cent upon a valuation of the right to receive income, which he then could not ascertain with certainty, and to receive payment of such tax “on account”;</p> <p>(5) The Tax Commissioner’s power to assess was not exhausted by the making of such first assessment, and the subsequent assessments were lawful;</p> <p>(6) The statute, St. 1907, c. 563, is constitutional.</p>

<p>Bill in equity, filed in the Probate Court on April 9, 1920, by the trustee under the will of Emily R. Peirson, late of Boston, for instructions as to how distribution of the trust fund should be made among the testator’s surviving sister and the children of a deceased brother and sisters.</p> <p>In the Probate Court the suit was heard by Grant, J., a guardian ad litem of Henry Sturgis Russell, a minor son of Henry Sturgis Russell, deceased brother of the testatrix, having been appointed. Material facts are described in the opinion. By order of the judge, a decree was entered that distribution should be made entirely per stirpes. Three of the children of Henry Sturgis Russell, the brother of the testatrix, appealed and, at their request, the judge reported the suit to this court for determination.</p>

<p>Two actions of contract for $175 and $225, respectively, amounts alleged to be due to the plaintiff for painting done on a building toward the construction of which the defendant corporation (hereinafter called the defendant) was to advance money under the provisions of a construction loan mortgage, the plaintiff alleging that orders by the owner upon the defendant to pay said amounts to him from the eighth and ninth payments to be paid by the defendant to the owner under the construction loan agreement were accepted by the defendant, and that there had been a waiver by the defendant of a condition precedent stated in the acceptance and described in the opinion. Writs dated July 15, 1918.</p> <p>In the Superior Court the actions were tried together before Lawton, J.</p> <p>j The eighth payment to the owner was to be made by the defendant under the construction loan agreement when "the said building shall be completed ready for occupancy, granolithic walks in front and alongside entrances, grounds graded and covered with four inches of loam, sewer and gas connected, cellars cemented, all combination coal and gas ranges set up and connected properly, electric fixtures up and tested, shades hung, screens and screen doors hung and all painting and papering and varnishing completed;” and the ninth payment was to be made forty-three "days after the said building is completed, provided no mechanics’ liens have been filed.”</p> <p>Other material evidence is described in the opinion. Jit the close of the evidence, the defendant made certain requests for rulings. Those not waived by the defendant are described in the opinion. The jury found for the plaintiff in both actions, the finding in the first action being in the sum of $182.87, and that in the second action being in the sum of $235.13. The defendant William W. Babcock Company alleged exceptions, the bill of exceptions in each case stating, "The court refused to give said instructions, except so far as the same were given in substance in his charge, and with the consent of the court the defendant duly excepted to such refusal except so far as the requested instructions were given in the charge and its exception was duly noted.”</p> <p>The case was submitted on briefs.</p>

<p>Tax, Abatement, Excise on foreign corporation. Corporation, Foreign. Evidence, Presumptions and burden of proof. Equity Pleading and Practice, Petition under St. 1909, c. 490, Part III, § 70.</p> <p>By St. 1909, c. 490, Part III, §§ 54H56, no excise tax upon a foreign corporation is assessed or becomes due and payable by such a corporation until the certificate of condition of the corporation is presented to the Commissioner of Corporations, and no certificate of condition can be placed on file by the Secretary of the Commonwealth until it has been approved by the Commissioner of Corporations as in conformity to law and he as Tax Commissioner has assessed the excise tax and that tax has been actually paid to the Treasurer and Receiver General.</p> <p>In a petition by a foreign corporation under St. 1909, c. 490, Part III, § 70, for the abatement of an excise tax assessed in 1918, it was alleged that the petitioner paid to tíre Treasurer and Receiver General on April 30, 1918, an excise tax “which had then been assessed by the Tax Commissioner,” and which “purported to be made under the provisions ” of §§ 54-56 of the statute as amended by St. 1914, c. 724; that the annual meeting of the corporation was held on January 30,1918, and was finally adjourned on that day, and that the ¡thirty days provided by § 54 of the statute for the filing of the corporation’s 'certificate of condition expired on March 2,1918, sixteen days before the enactjment on March 18 of St. 1918, c. 76, repealing St. 1914, c. 724. The petitioner contended that it did not become liable for any tax in 1918. At the hearing, the facts as alleged were agreed to. Held, that</p> <p>(1) There was no allegation that the certificate of condition was approved and that the excise was assessed by the Tax Commissioner on any day previous to that on which the tax was paid;</p> <p>(2) No intendment could be made in favor of the petitioner in that particular;</p> <p>(3) The petitioner could not avail itself of any presumption of the regularity of its conduct or compliance with the law arising from the circumstance that by § 54 of the statute, it was required to file its certificate within thirty days after its annual meeting;</p> <p>(4) The case must be considered on the footing that the assessment was made on April 30, 1918;</p> <p>(5) It was immaterial whether the petitioner’s certificate of condition was offered to the Commissioner after the institution of proceedings under §§ 58, 59 of the statute, or without such proceedings being resorted to;</p> <p>(6) St. 1909, c. 490, Part III, § 56, which was the excise tax provision in effect on April 30, 1918 (the amendment contained in St. 1914, c. 724, having been repealed by St. 1918, c. 76, on March 18), was valid;</p> <p>(7) The excise tax in question was assessed under St. 1909, c. 490, Part III, § 56, and was valid.</p> <p>Tn the petition above described it appeared that the petitioner was incorporated under the laws of the State of Maine and had its principal office in that State, where it held its stockholders’ meetings and kept its records. It operated mining and smelting properties in Arizona. The president and a majority of the directors of the corporation were residents of the State of New York. No directors’ meetings were held in Massachusetts, nor were purchases of materials for conducting its operations and the sales of its products made in this Commonwealth. It maintained an office at Boston, its vice-president, who was a director, and its treasurer were residents of this Commonwealth, and a bank account (not for investment) was kept in Boston, checks upon which were signed by the treasurer in Boston and payments from which were made in part directly to creditors and in part by remittances to its managers in Arizona, who there disbursed them. Dividends to stockholders were paid by checks of the treasurer drawn in Boston. General books of account were kept under the direction of the treasurer in the Boston office and detail books of account were kept in the State of Arizona. Held, that the financial headquarters of the petitioner were at Boston, that therefore the petitioner was performing in the Commonwealth corporate functions which were local in their nature and were not interstate or foreign commerce; and that it was subject to the excise tax under '§ 56 of the statute. '</p>

<p>Petition, filed in the Probate Court for the county of Norfolk under R. L. c. 153, § 33, alleging that the petitioner was living' apart from the respondent for justifiable cause and seeking separate maintenance.</p> <p>The petition was heard in the Probate Court-by Flint, J., and a decree was entered reciting that the petitioner was living apart from the respondent for justifiable cause and directing him to pay for her support $30 forthwith and $7 each week thereafter.</p> <p>Upon appeal to the Superior Court the case was heard by Sisk, J., upon an agreed statement of facts. Material facts agreed upon are described in the opinion. The judge found and ruled that the petitioner was not living apart from the respondent for justifiable cause, ruled that the decree of the Probate Court should be reversed and the petition dismissed, and reported the case to this court for determination.</p>

<p>Trade Name. Unlawful Interference. Equity Jurisdietion, To enjoin interference with use of trade name. Equity Pleading and Practice, Finding by judge.</p> <p>At the hearing by a judge of the Superior Court of a suit in equity between two manufacturers and sellers at wholesale of women’s dresses to enjoin the defendant from using a trade name similar to that used by the plaintiff, the evidence was taken by a commissioner appointed under Equity Rule 35, and the judge found that the dresses made and sold by the plaintiff were all of staple cotton material such as prints and calicoes, which could be washed, while those made and sold by the defendant were silk and woollen dresses, which were rarely of plain or staple mixtures and which were known in the trade as novelty goods and were not what are called wash dresses; that the plaintiff and the defendant were not competitors, and that the name adopted by the defendant was not likely to mislead those with whom the parties dealt and among whom they looked for business. A decree dismissing the bill was entered and the plaintiff appealed. Held, that</p> <p>(1) The findings were right;</p> <p>(2) There was no unfair trade competition or interference on the part of the defendant;</p> <p>(3) The decree must be affirmed.</p>

<p>Contract upon an account annexed for professional services as attorneys and counsellors at law, alleged to have been rendered to sixteen individuals named as defendants, who were “Promoters of the Boston and Eastern Electric Railroad Company.” The defendants on whom service was made were John H. Bickford, Arthur Sturgis, William H. Gove, Melville Woodbury, William S. Nichols, Fred A. Norton, John H. Linehan, Harry P. Graves, George C. Vaughn and William E. Bixby. Writ dated April 16, 1914.</p> <p>In the Superior Court, the action was referred to an auditor ■ and, upon the filing of his report, was recommitted to him for a further report. Material facts found by him in his reports are described in the opinion. The parties agreed that the auditor’s reports recited all evidentiary facts, that the action might be heard by a judge without a jury on the auditor’s reports and that the plaintiffs, if entitled to recover against any or all of the defendants, were entitled to recover the amount found by the auditor with interest to the date of judgment.</p> <p>The action thereupon was heard by McLaughlin, J., without a jury. The substance of findings and rulings asked for by the defendants, the rulings of the judge thereon and the exceptions saved by the defendants are described in the opinion. The judge found for the plaintiffs in the sum of $12,469.62; and the defendants alleged exceptions.</p>

<p>Negligence, Street railway. Snow and Ice.</p> <p>At the trial of an action against a street railway company by a woman passenger for personal injuries caused by her falling upon ice and snow upon the left front step of a car of the defendant upon which she was a passenger and from .which she was alighting at a terminus of the railway on a morning in December, 1914, there was evidence tending to show that on the morning of the accident there had been a mixture of sleet and rain falling, that when the car reached the terminus the left hand front door was open, that the car was fairly well filled and that many of the passengers in the presence of the motorman departed by that door, which was near the sidewalk, that the step was covered with ice from a quarter to half an inch thick and very solid, higher in the centre and rounded toward the front, that the plaintiff, on account of the presence of people in front of her, did not know of the ice on the step before she started to go out and that the motorman had sanded the right hand front step but not the left hand step where the plaintiff fell. The defendant contended that the left hand door was not intended for use as an exit at that time. The motorman testified that he did not know who opened the left hand front door. There were two pails of sand on the front platform. Held, that</p> <p>(1) There was evidence warranting a finding that the defendant had not -taken the care for the plaintiff’s safety required of a common carrier of passengers;</p> <p>(2) A finding that the plaintiff was in the exercise of due care was warranted.</p>

<p>Bill in equity, filed in the Superior Court on November 20, 1919, for the specific performance by the defendant, Frances J. Hallgreen, of an agreement in writing for the sale and conveyance to the plaintiff of premises numbered 3 and 5 on Sturgis Street in Chelsea; also a</p> <p>Bill in equity, begun by writ of attachment in the Superior Court dated December 1, 1919, against the same owner and against Brown, the plaintiff in the first suit, for specific performance of an agreement in writing to sell and convey the same premises to the plaintiff and to have the agreement between the , defendant Hallgreen and the defendant Brown declared null and void.</p> <p>In the Superior Court the suits were heard together by Lawton, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. The judge made the following findings: “The two cases were tried together before me. The plaintiff, Zeff, went to a real estate agent, George I. M. Hayes, and said he wanted to buy the property in question. On October 31,1919, Hayes wrote to the owner, the defendant, Miss Hallgreen. On Monday, November 3, she came to Hayes’ office and stated her price, $5,000. Zeff was notified of the price, and on Tuesday, November 4, went to Miss Hallgreen personally and tried unsuccessfully to induce her to reduce her price. He also went to the house to examine it, but was refused admittance. The house is a double house, in neither half of which does Miss Hallgreen five, one half of which has been occupied for many years by the plaintiff Brown, with his mother and sister, as tenant of Miss Hallgreen. Two or three years ago, he talked with her about purchasing the house, and asked her, if she ever decided to sell, to give him ‘the first chance to buy.’ She promised to do so.</p> <p>“Wednesday, November 5, at 7 p.m. Brown went to Hayes’ office. How he learned that the house was for sale, or why he did not go direct to Miss Hallgreen did not appear. He was told the . price, discussed it, and asked Hayes, who had not seen the house, to go and examine it. Hayes agreed to do so on or before the following Sunday if the house was not sold before that time. He asked Hayes to promise to sell to bim before he sold to any one else, and Hayes declined to do so.</p> <p>“Thursday afternoon, December 7, [November 6] Hayes went to Miss Hallgreen. He told her of the two men who apparently desired to purchase, and she said that she desired Brown to have the first chance to buy if he were willing to pay her price. Hayes then wrote out the agreement for sale, . . . [which corresponded with that relied on by Zeff], with the following exceptions: The name of the purchaser was left blank. In the clause, ‘ a certain estate situated (No. 3 &) 5 Sturgis Street, Chelsea, and bounded as follows being a two family frame house and 5020 sq. ft. of land (situated 3 & 5 Sturgis St. Chelsea),’ the words and figures in parentheses were not then written in,'but were written later at Hayes’ office. The amount paid down was originally written as $200 and the balance as $4,800. Miss Hallgreen testified that the amount to be paid down was a matter of indifference to her, and the amount of $200 was suggested by Hayes. Miss Hallgreen signed and delivered this to Hayes, and I find and rule that she intended to give and did give him full authority to deliver this agreement to either of the plaintiffs, and that he was by her fully authorized to make such changes in the form of the agreement as he did thereafter make. Hayes got" back to his office at 3.45 p.m. and immediately called up Brown on the telephone and told him in substance that he could have the house for $5,000, but that he must decide at once, as another person was after it. That, Brown refused to do. In the evening of the same day, Thursday, Brown telephoned to Hayes and Hayes told him that the other party had not yet made his deposit, and that if he did not do so before Friday morning he (Hayes) would telephone to Brown. Later, Thursday evening, Zeff came to Hayes’ office and closed the bargain. He gave Hayes a cheque for $100, payable to Frances J. Hallgreen, signed by the firm name of the partnership of which he was a member, and signed the agreement which Miss Hallgreen had previously signed . . . , after Hayes had altered it 'by changing $200 to $100 and $4,800 to $4,900, and writing in the additions heretofore noted.</p> <p>“On Friday morning, November 6, Brown telephoned to Hayes, and Hayes told him the property was sold. Friday evening, Brown went to Miss Hallgreen’s house. In response to Brown’s inquiries, she told him in substance that she had signed an agreement to sell, but had received no money. Brown told her in substance that unless she had received money there was no binding agreement to sell. Brown urged her to sell to him,. She consented. He gave her a cheque for $500 to bind the bargain and she signed a receipt which Brown wrote and which was a sufficient agreement to sell. She did not know that Hayes had offered the property to Brown the previous afternoon, but understood or assumed that Hayes had disobeyed her instruction to give Brown the first chance.</p> <p>“I make no finding of wilful fraud on the part of Brown, but I do find that the defendant was misled by, and relied on, his statement that she had not made a binding agreement, or authorized Hayes to make it, and that she was misled by his silence as to the fact that the property had been offered to him., Brown, the day before.</p> <p>“On the foregoing facts, I find and rule that the plaintiff Brown is not entitled either to a decree for specific performance or. to damages. Subsequent actions by each plaintiff, with a view to fortifying his position, are immaterial.</p> <p>“The defendant has been at all times ready and willing to make conveyance to whichever plaintiff was entitled to it.”</p> <p>By order of the judge a decree was entered in the first suit declaring the Brown agreement to be null and void and dismissing the bill; and, in the second suit, a decree was entered ordering a sale and conveyance to the plaintiff. Brown appealed from both decrees.</p>

<p>Mortgage, Equitable, Redemption. Contract, Validity. Equity Jurisdiction, To redeem from equitable mortgage.</p> <p>The owner of a tract of timber land, two hundred forty-seven acres of which were on one side of a road and one hundred acres on the other, conveyed to a lumbering corporation for 310,000 all standing wood and timber on the larger tract with a right to saw and remove the timber for a period of six years and the corporation agreed with the owner in writing that for six months he was privileged to sell the wood and timber, with appurtenant rights, for it for $11,000 and interest, taxes and expenses. The six "months having nearly passed, the owner showed his agreement to a lumberman with whom he had been negotiating and to whom he had offered to sell one hundred ninety-seven acres of the larger tract for $14,000, and, on the last day of the six months, the lumberman paid to the corporation $12,000 and received from it a conveyance of the wood and timber on the larger lot and from the owner a conveyance of the fee in both lots, at the same time and as a part of the same transaction entering into an agreement in writing with the owner which purported to give to him an option to repurchase all of the property on payment within six months of $13,000 and interest on $12,000, or, during the succeeding six months, a payment of that sum and also a further sum of $166.67 for each additional month, and that “these options [were] not to interfere with a sale to” the corporation “or representatives if made before operation.” A year later, after the owner had recorded the contract with the lumberman in the appropriate registry of deeds with a caveat, the lumberman sold to another, for whom an examination of the records had been made, the timber on one hundred ninety-seven acres of the larger tract for $17,500, agreeing to finance the operation of the lot; and the owner brought a suit in equity against the lumberman and his grantee, alleging the sale by him to the lumberman to be an equitable mortgage, offering to pay the mortgage debt and praying for redemption. A master to whom the suit was referred found that the payment by the lumberman of $12,000 to the corporation was at the instance of the plaintiff and for his benefit; that, after the execution of the plaintiff’s deed to the lumberman, the plaintiff remained in possession and control of the premises and paid taxes thereon; that the so called option agreement contemplated that in certain events like a sale to the corporation, or operation, the plaintiff was to share in the profits and get a reconveyance of the balance of the premises, and that “the price of $12,000 for three hundred and forty-seven acres wood and fee left too large a margin of profit to be a likely consideration for a bona fide sale between experienced lumbermen like the plaintiff and the defendants.” The master concluded that the con- , veyance by the plaintiff to the lumberman was for security, and further found ' that the plaintiff agreed that the release of all his rights in the premises should become absolute in a year unless in the meantime he had entitled himself to a reconveyance by complying with the provisions of the so called option. Held, that</p> <p>I (1) The deed of the plaintiff to the lumberman and the so called option agreement constituted in equity a mortgage;</p> <p>(2) The plaintiff’s agreement that the release of his rights to the lumberman should become absolute if he failed to entitle himself to a reconveyance by complying with the provisions of the option, was void as against public policy;</p> <p>(3) The plaintiff was entitled to redeem.</p>

<p>Practice, Civil, Auditor, Judgment according to auditor’s report, Jury issue. Judgmerit. Jury and, Jurors.</p> <p>Interpretation by Jennet, J., of Rule 31 of the Superior Court (1915) as to ordering of judgment according to a report of an auditor.</p> <p>A building contractor brought an action against the owner of certain land upon which he had constructed a building, the declaration being upon an account annexed containing an item of $1,210 for a balance alleged to be due on a contract in writing for the building and other items for extras. The owner also brought an action against the contractor for damages arising from alleged breaches of the contract. Each plaintiff claimed a trial by jury in his action. ■ The two actions were referred to and heard together by an auditor, who found in substance that the contractor had not substantially performed the contract, and therefore that he could not recover on the $1,210 item, but that he could recover a certain amount for the extras; that, while the alterations necessary to make the building conform entirely to the contract would involve an expense of betweeni$2,000 and $3,000, the results obtained would be so disproportionate to this cost that it would not be feasible or reasonable to make such alterations, although in certain respects changes could be made which would be feasible; that the owner had been damaged by the breaches of the contract by the contractor to the amount of $1,000, and that, since the sum was less than the unpaid balance called for by the contract, he found for the defendant in the action of the owner against the contractor. Upon the coming in of the report, under Rule 31 'of the Superior Court (1915), the owner in his action moved that an issue be framed for a jury as to what “it would cost to supply the omitted work and materials and make such changes and alterations as might be necessary to make the building conform to the contract,” and stated that he expected to show that such cost would be approximately $2,100; and the contractor moved in both actions for judgments according to the auditor’s report. A judge of the Superior Court denied the owner’s motion for a jury issue, stating as the ground for denial that, even if the facts were found as the owner contended, he would not be entitled to damages. The motions of the contractor were allowed. The owner alleged exceptions. Held, that</p> <p>(1) The exceptions to the denial of the owner’s motion for an issue for a jury must be overruled, even though the reason given for the denial were incorrect, since the disposition of the motion was discretionary with the judge and he could not be compelled to single out and to emphasize as an issue only one of the questions of fact involved in the action;</p> <p>(2) It seems, that, if the owner had relied on his right to a trial by jury as an objection to the granting of the motions for judgment under Rule 31 of the Superior Court (1915), the motions could not properly have been granted;</p> <p>(3) The owner’s motion for the submission to a jury of an issue upon one only of the questions involved in his action was not an insistence nor a reliance on his right to a trial by jury, duly claimed;</p> <p>(4) Since neither party persisted in or relied on his right to a jury trial, duly claimed, and did not ask that either action be heard by a judge without a jury, proper cases were presented for disposition on motions under Rule 31 of the Superior Court (1915) for judgments according to the auditor’s report;</p> <p>(5) In the contractor’s action, the auditor’s finding for the plaintiff for the amount claimed for extras was clear and definite and judgment properly was ordered for that amount;</p> <p>(6) In the owner’s action, the auditor’s findings in effect assessing the damages suffered by the owner in a stun less than the unpaid balance called for by the contract, and therefore his finding for the defendant, was warranted by his other findings and warranted an order of judgment for the defendant.</p>

<p>Bill in equity, under St. 1903, c. 437, §§ 34, 36, as amended by St. 1911, c. 488, §§ 1, 2, begun by writ of summons and attachment in the Superior Court on June 3, 1919, and afterwards on motion of the defendant Harris removed to the Supreme Judicial Court, to require the defendant Frederick Harris to pay a balance due on a debt of the defendant Ilickinson Manufacturing Company to the plaintiff by reason of the fact that he, while the president and a director of that corporation, in 1917 signed a false certificate of condition of the corporation which was filed with the Secretary of the Commonwealth on April 9, 1917.</p> <p>Pleas filed by the defendants and a demurrer filed by the defendant Harris are described in the opinion. The pleas and the demurrer were heard by Carroll, J., who found certain facts relating to the pleas which are described-in the opinion, overruled both the pleas and the demurrer and reported the case to the full court for determination, “it being agreed that if either of the pleas or demurrer is sustained, the plaintiff shall have a right to amend if it so desires, if the matter is capable of amendment; and if the decision is against the defendants or either of them, the defendants or either of tlhem shall have a right to answer over.”</p>

<p>Trust, Construction: designation of beneficiary. 'Devise and Legacy, Designation of beneficiary. Evidence, Extrinsic affecting writings.</p> <p>A will, made in St. Louis in the State of/Missouri in 1914 by a man who was born in New Bedford in this Commonwealth and who, in 1859, when fourteen years of age, went South where he lived until his death in 1915, placed certain property in trust “for the use and benefit of the New Bedford Home for Aged People, or, if there be no such home, then to such charities in the city of New Bedford as the . . . trustees . . . may select.” Two corporations were the only claimants under the trust. One of them, the New Bedford Home for Aged, was established by a young colored woman in 1897 and was incorporated in 1902 “for the purpose of the establishment and maintenance of a place for charitable and beneficial purposes and aiding and assisting and otherwise caring for aged and indigent persons.” Its incorporators were colored people. It erected a building in 1908, which it conducted as a home and which accommodated fourteen persons. Both white and colored persons had been cared for by it, but colored women had predominated. The home was sometimes known as “Home for Aged People.” The second claimant was the Association for the Relief of Aged Women of New Bedford, incorporated in 1866 "to provide relief for aged women of New Bedford.” It never had established nor conducted an institutional home, but had been engaged in providing or helping maintain homes for such women and otherwise aiding them. It had for many years been widely and favorably known in New Bedford and had been maintained in part by members of leading families of the city by legacies and donations. The testator left a large fortune which by his will was largely devoted to charities intended primarily for the benefit of white persons. There was nothing to show that he ever expressed any especial interest in the colored race. He knew that there was an organization in New Bedford that provided homes for genteel old women and was deeply interested in the work it was doing, knew that it was not an institutional organization, that the recipients of its bounty were not all put into one large building, but that homes were provided for them in different residences so that they were not made to feel that they were in a charitable institution. This organization he attempted to describe in the provisions in his will although he was uncertain as to its correct name. Upon a bill in equity for instructions, it was held, that</p> <p>(1) As the name of neither claimant corresponded to that given in the will, it was proper, in ascertaining whether the testator intended, by the language used in his will, to designate either claimant, to consider all surrounding facts known to the testator and existing or in his mind when the will was made, and also his relations with the claimants;</p> <p>(2) A finding was warranted that the gift for charity created by the clause in question was intended for the benefit of the Association for the Relief of Aged Women of New Bedford;</p> <p>(3) A decree directing that the Association was entitled to benefit under the trust was affirmed.</p>

<p>. Three actions op tort, the first and second actions being for personal injuries and the third for property damage resulting when a street railway car of the plaintiff in the third action, with the plaintiff in the first action as conductor and the plaintiff in the second action as motorman, collided with a motor truck of the defendant standing upon the street railway track. Writs dated December 23, December 22 and December 22, 1916, respectively.</p> <p>In the Superior Court, the actions were tried together before Sisk, J. Material evidence is described in the opinion.</p>

<p>Workmen’s Compensation Act, Notice to or knowledge by the employer.</p> <p>At the hearing of a claim under the workmen’s compensation act by the widow of ■ an employee in a quarry who received injuries on July 10, 1919, which resulted in his death on the following day, it appeared that no notice in writing of the injury had been given to the employer as required by Part II, § 15 of the act. There was evidence that, while loading stone under the observation of his foreman, the employee came to the foreman and said, "I got an awful pain across < here,” pointing to his stomach, and that the foreman advised him to see a physician and sent him home in an automobile. The foreman testified that the employee did not explain “how it happened;” and that he, the foreman, knew nothing further “about it.” On the second day after the injury, the day following the death, the employer made out a report in writing to the Industrial Accident Board, which he filed four days later, and in which, in describing the injury, he stated that the employee “was taken ill suddenly while at work and was removed to the hospital, the physician said he had a strain which caused a rupture of which he died of Friday.” The report also stated the names of the hospital and of the attending physician. The Industrial Accident Board found that the employer “had knowledge of the injury” which under Part II, § 18 of the act dispensed with the requirement of a notice in writing contained in § 15. Held, that the finding was warranted.</p>

<p>Contract for breach of an agreement in writing in failing to supply to the Boston Condensed Milk Company, whose trustees in bankruptcy were the plaintiffs, ice needed for its business during the summer of the year 1913 and the year 1914. Writ dated December 18, 1915.</p> <p>In the Superior Court, the action was referred to an auditor and, upon the coming in of his report, was tried before Fox, J.</p> <p>The letter by the president of the milk company to the president of the defendant, dated July 19, 1913, referred to in the opinion, was as follows: “I hereby give you notice that we are having great difficulty in securing ice at any price to take care of our business, and are losing considerable merchandise and trade, which we will expect the Boston Ice Co. pay on account of your refusing to sell us ice as per your contract, made between your company and the Boston Dairy Co., our predecessor.”</p> <p>Other material evidence and exceptions saved by both parties are described in the opinion.</p>

<p>Contract upon an account annexed for SI,395.36, aid furnished by the plaintiff to Harry B. S. Hinds and family from April 26, 1917, to May 1, 1919, with interest. Writ dated September 2, 1919.</p> <p>In the Superior Court, the action was heard by Sisk, J., without a jury, upon an agreed statement of facts, from which it appeared that Hinds was born in Charlestown in 1879, and that, after he became of age, he had lived in Fitchburg, Allston, Boston, Wellesley and Needham in this Commonwealth, in Chicago in the State of Illinois and again in Needham. He had not acquired a settlement in any of the above places. Settlement was claimed in Fitchburg through a settlement of his father, who had resided and had paid taxes in Fitchburg for fifteen years.</p> <p>Under date of November 22, 1913, settlement was admitted if # # 3 7 for Harry B. S. Hinds and family by the overseers of the poor of Fitchburg. His family at that time consisted of a wife and four children. Under this admission aid was furnished by the plaintiff to Hinds and family from October 23, 1913, to May 1, 1916, and the defendant reimbursed the plaintiff therefor. No aid was furnished Hinds or his family from May 1,1916, to April 26, 1917, when aid was resumed, Hinds then being in the Lakeville Sanatorium.</p> <p>On November 29, 1913, the board of health of the defendant directed the overseers of the poor of the plaintiff to send Hinds, who then was ill with tuberculosis, to the tuberculosis department of the Burbank Hospital, a public hospital in Fitchburg, and on December 8, 1913, Hinds came to Fitchburg and went directly to the hospital. He was a patient there until he was discharged on March 28, 1914, as an arrested case and went directly back to Needham on his discharge. During the time he was in the hospital, his wife and children occupied their home in Needham.</p> <p>On October 22, 1914, the overseers of the poor of the plaintiff notified the overseers of the poor of the defendant that Hinds was again ill with tuberculosis and needed additional assistance, and suggested the removal of him and of his family to Fitchburg. The overseers of the poor of the defendant replied two days later, directing the overseers of the poor of the plaintiff to use their “best judgment in providing for this case for the present until some other arrangement can be made.” On May 26, 1917, the overseers of the poor of the plaintiff notified the overseers of the poor of the defendant that Hinds and family, whose legal settlement was in Fitchburg, being in needy circumstances, had applied to the Needham board for relief, and that the same had been granted and charged to Fitchburg, On June 26,1917, the overseers of the poor of the defendant notified the overseers of the poor of the plaintiff that under the provisions of St. 1911, c. 669, they denied that Hinds had a settlement in Fitchburg, his settlement in that city having been lost through five years’ absence from the city of Fitchburg.</p> <p>Hinds with his family never resided in Fitchburg. Hinds was never in Fitchburg after July 13, 1911, except for the period from December 8, 1913, to March 28,1914, when he was patient in the Burbank Hospital.</p>

Contract, under St. 1907, c. 474, § 10, as amended by St. 1912, c. 17, for $296.56 for the support of the Harry B. S. Hinds described in the case of Needham v. Fitchburg, ante, 354, in Lake-ville State Sanatorium from May 28, 1917, to October 28, 1918. Writ dated May 25,1920.

<p>Workmen’s Compensation Act, Injuries to which act applies. Labor. Strike.</p> <p>One, who entered employment as a first class iron moulder with a machine company which was a subscriber under the workmen’s compensation act. at a time when a strike was in progress at its plant, the terms of the contract of employment being that the company should provide protection for him in the hours both of his employment and of his rest and recreation during all the time that he remained an employee of the company and that the company should compensate him if he was harmed by reason of not receiving such protection, cannot maintain a claim under the workmen’s compensation act for injury due to an assault upon him when, after five o’clock in an afternoon, he had “dropped his tools, changed into street dress, rung in bis time and left the factory ” and had proceeded to the highway where, with fellow employees, he was being escorted by the superintendent of the factory on his way to a boarding house, when, due to an altercation between the superintendent and one of a group of men on the street in sympathy with the strikers, who had attempted to talk with a fellow employee of the claimant, “the whole crowd came over and mixed right in,” such injury not having been received in the course of the claimant’s employment.</p>

<p>Equity Jurisdiction, Accounting, Laches. Mortgage, Of real estate. Interest. Equity Pleading and Practice, Answer. Trust. Notice.</p> <p>Acting under an oral agreement of a savings bank, which held a first mortgage upon certain real estate, with one who held a second and a third mortgage thereon and with the owner of the real estate, the holder of the second and third mortgages managed the property in behalf of the mortgagees, collected rents, paid expenses and turned over to the savings bank from time to time the net receipts, which were to be applied by it to the payment of taxes, of interest on the mortgage notes and of the principal of the notes in an order determined by the bank’s treasurer. The rents were collected by a sister of the owner for the managing mortgagee and were deposited in an accotmt in a national bank in the name of the owner, followed by the designation, “Trpstee,” upon which checks were drawn “only with the sanction” of the managing mortgagee. The owner died in January, 1917, and the national bank then had $149 on deposit in the account standing in his name as trustee. The sister of the owner continued to collect the rents under the direction of the managing mortgagee.</p> <p>- She did not however deposit them under the managing mortgagee’s direction, but gave them to an agent for herself, her sisters and the widow of the former owner. The agent in April, 1917, was appointed administrator of the owner’s estate and placed in an account in his name as such administrator the money thus previously turned over to him by the sister and further collections thereafter made by her, and the national bank paid to him a sum then on deposit with it in the account standing in the name of the former owner as trustee, which the administrator received “in good faith and without knowledge of any arrangement,” and used it in whole or in part in payment of bills against the estate. In August, 1917, the savings bank foreclosed the first mortgage by sale under the power therein, and the holder of the second and third mortgages purchased the property and in June, 1918, $5,000 still being owed to him, brought a suit in equity in the Superior Court against the savings bank and the administrator, both as administrator and individually, for an accounting as to sums received before the foreclosure, at the hearing of which it was not claimed that anything remained due to the savings bank as first mortgagee or for taxes paid, and it appeared that the administrator had paid repair bills and water rates upon the property, although the amount was not in evidence. The savings bank in its answer, without alleging ignorance as to the ownership of the fund in its hands, contested liability. A decree was entered dismissing the bill and the plaintiff appealed. Held, that</p> <p>(1) The entire beneficial interest in the fund in the hands of the savings bank was in the plaintiff, and the bank held it subject to the oral agreement with the plaintiff and the owner of the property, which was not terminated by the . death of the owner;</p> <p>(2) The plaintiff’s right to receive the money in the hands of the savings bank was not barred by the statute of frauds;</p> <p>(3) The plaintiff was entitled to a decree directing the savings bank to deliver to him the fund in its possession, and that that bank, owing to the fact that it contested liability, should pay interest thereon from the date of the filing of the bill;</p> <p>(4) The fact, that the account in the national bank stood in the name of the former owner as trustee, fixed the administrator with notice of the agreement under which the deposit was made;</p> <p>(5) At the time of the filing of the bill, the plaintiff was entitled to the amount received by the individual defendant from the national bank, less any expenses properly chargeable thereon;</p> <p>(6) The amount disbursed by the individual defendant from the fund received by him from the national bank not having been ascertained, the suit was remanded to the Superior Court to detenhine what part, if any, of that fund should be paid to the plaintiff;</p> <p>(7) There was no unreasonable delay in bringing the suit;</p> <p>(8) The agreement under which the rentals were collected ceased to be of ' binding force on the death of the owner, and the plaintiff was not entitled under it to claim any of the amounts so collected thereafter.</p>

<p>Contract for a commission alleged to be owed to the plaintiff as a real estate broker. Writ in the Municipal Court of the City of Boston dated February 11, 1920.</p> <p>Material facts found by the judge of the Municipal Court are described in the opinion. The judge found for the defendants and, at the request of the plaintiff, reported the case to the Appellate Division, who vacated the finding for the defendants and. ordered judgment for the plaintiff in the sum of $125; and the defendants appealed.</p> <p>The case was submitted on briefs.</p>

<p>Trust, Construction of trust instrument. Devise and Legacy, Contingent estate.</p> <p>A testator, who in his will ordered “that no one who is not of my blood take or have any of my trust property or estate,” directed that, on the death of his wife, of a certain annuitant, and of the last survivor of his children, a trust estate established by his will should be given in equal shares to each of his grandchildren then living and to the lawful issue of each grandchild who had deceased, by right of representation; and that the share to be received by one designated grandson should be held in trust for him and, upon his death, should be “paid equally to my other grandchildren and to the lawful issue and legal descendants in manner and proportion as herein before has been ordered in the division to be made” and that, if none of “my other grandchildren should be living then I order that his share be divided and conveyed equally to each of my great grandchildren then living.” At the time of the death of the testator’s widow, the annuitant and the survivor of his children, fourteen grandchildren were living, including the designated grandson, and none had died leaving issue. All of these grandchildren were living at the death of the designated grandson except one granddaughter who had assigned her interest in the trust to a banking institution and had died without issue. Held, that the trust estate should be distributed equally among the twelve grandchildren of the testator living at the death of the designated grandson, to the exclusion of the assignee and the administrator of the estate of the granddaughter who had predeceased the grandson. '</p>

<p>Petition, filed in the Land Court on March 17, 1919, for the registration of the title to three parcels of land in Dedham. The respondent claims title to the parcels under tax deeds and also through adverse possession.</p> <p>• In the Land Court, the petition was referred to a master. .Material findings of the master are described in the opinion.</p>

<p>Tort for the destruction of an ice crop by the defendant in draining a mill pond upon the plaintiffs’ land by raising the gates of a dam owned and maintained by the defendant upon its land. Writ dated June 30, 1919.</p> <p>The material allegations in the declaration are described in the opinion. The defendant filed a demurrer to the declaration upon the ground that it set forth no breach of any legal duty owed by the defendant to the plaintiffs and that the defendant had a legal right to raise its sluice gates which was superior to any right of the plaintiffs to the ice formed on the pond. The case was argued upon demurrer in the Superior Court before Wait, J., who sustained the demurrer and upon motion of the defendant ordered judgment for the defendant. The plaintiffs appealed.</p>

<p>Tort for damages caused to Trinity Court, an apartment hotel in Boston owned by the plaintiffs, by smoke, vapor, cinders and noise emitted from locomotives operated by the defendant at Trinity Place station. Writ dated June 14, 1919.</p> <p>The declaration contained three counts which are described in v the opinion. The defendant filed a demurrer to the declaration alleging the misjoinder of two counts in tort with a count not sounding in tort and further objecting to the third count on the grounds that the defendant could not be liable in an action of tort for obeying an act of the Legislature; that the plaintiffs’ only redress for the injuries complained of was by a petition for the assessment of damages under St. 1896, c. 516, § 23, or other applicable statutes and that if the third count is in effect such a petition, it was not seasonably brought; that in so far as the location of Trinity Place station was concerned, that was an act of the Boston and Albany Railroad Company and not of the defendant, and therefore could not impose any liability on the defendant, and that in any event the damage was too remote and speculative and was not sufficiently distinct, separate, special and peculiar to the plaintiffs to be recoverable at all.</p> <p>The case was argued on the demurrer before Hammond, J., who, being of opinion that a remedy was given to the plaintiffs by statute for the recovery of the damages described in the third count by petition for the assessment of damages, made an order sustaining the demurrer and reported the casé upon that order to this court for determination. It was agreed that if the judge was right in sustaining the demurrer, then the plaintiffs were to have leave to amend their declaration by striking out the third count thereof, and if they declined to make such amendment, judgment was to be entered for the defendant; but that if he was wrong in sustaining the demurrer, then the case was to stand for trial on all three counts of the declaration, without prejudice, however, to whatever right the defendant would otherwise have had to move at the trial to compel the plaintiffs to elect between the first and second counts of their declaration, or between the first two counts of said declaration, or either of them, and the third count thereof.</p>

<p>Evidence, Presumptions and burden of proof. Waiver. Sale, Delivery and acceptance. BiU, of Lading. Practice, Civil, Exceptions.</p> <p>At the trial of an action of contract for the purchase price of goods alleged to have been sold and delivered by the plaintiff to the defendant upon the defendant’s order, the defendant denied liability because the plaintiff had shipped the goods by a different carrier from that designated by the defendant in his order to the plaintiff, and the plaintiff contended that the defendant had waived that defence. There was evidence that the plaintiff had sent to the defendant a non-negotiable bill of lading reciting receipt of the goods by the carrier to whom the plaintiff had delivered them, and that the defendant was named therein as consignee; that the merchandise never was received by the defendant; that the defendant as consignee brought an action against the carrier who received the goods for failure to deliver the merchandise, which action was still pending, and that certain letters of the defendant to the plaintiff contained no objection by the defendant that a wrong carrier was used. The question whether the defendant had waived his rights arising from the use of a carrier other than the one designated by him was left to the jury with proper instructions. The jury found for the defendant. Held, that</p> <p>(1) The burden of proving the affirmative proposition that the defendant had waived his rights, arising from the shipment by the carrier not sanctioned by him, rested upon the plaintiff;</p> <p>(2) Omission by the defendant in his letters to the plaintiff to refer to the shipment by another carrier than the one named by him did not constitute a waiver as a matter of law;</p> <p>(3) The receipt and retention by the defendant of the non-negotiable bill of lading showing delivery of the goods by the plaintiff to the wrong carrier was not conclusive proof of a waiver by the defendant;</p> <p>(4) The action at law by the defendant against the carrier was not an unequivocal assertion of waiver of his right to rely upon the failure of the plaintiff to perform its contract with him as to selection of the carrier;</p> <p>(5) All the above facts, taken together, did not warrant a ruling as a matter of law that there was a waiver by the defendant of his defence based on the plaintiff selecting a carrier other than the one designated in the order.</p>

<p>Bill in equity, filed in the Supreme Judicial Court (on July 18, 1919, and afterwards amended, by the city of Boston against the Treasurer and Receiver General of Massachusetts, the Boston Elevated Railway Company and the trustees who were operating that railway under Spec. St. 1918, c. 159, setting forth the facts stated in the opinion and praying that “an injunction be issued against the Treasurer and Receiver General restraining him from paying to the Company the amount which the trustees have notified him he is to pay and which he proposes to pay; that said c. 159 of the Special Acts of 1918 be declared unconstitutional and null and void; that the trustees of the company be perpetually enjoined from determining the amount of the deficiency between income and cost of service as defined in said c. 159, and from notifying the Treasurer and Receiver General thereof; that the Treasurer and Receiver General of the Commonwealth be perpetually enjoined from assessing upon the plaintiff the whole or any part of any amount or amounts which the Commonwealth has paid or sha.11 pay to the company or from issuing any warrant in connection therewith or attempting to levy upon the plaintiff any tax for any part of such amount or amounts ” and for general relief.</p>

<p>Petition, filed in the Supreme Judicial Court on October 21, 1919, for a writ of certiorari addressed to the Treasurer and Receiver General of the Commonwealth and the trustees of the Boston Elevated Railway Company directing them to certify to the court their records relating to the determination, report and assessment upon the petitioner by an addition to the State tax of the payment made by the Commonwealth to the trustees of the Boston Elevated Railway Company under the provisions of Spec. St. 1918, c. 159.</p> <p>Erom the returns filed by the respondents it appeared that “During the year from July 1, 1918, to July 1, 1919, the income of the company was insufficient to meet the cost of the service as defined in said act, and on or about July 1, 1919, the trustees notified the Treasurer and Receiver General of the Commonwealth of the approximate amount of the deficiency which the Commons-wealth was called upon to pay under the provisions of § 11 of said act. On July 16, 1919, the trustees notified the Treasurer and Receiver General of the exact amount of said deficit aforesaid and called upon him for payment in accordance with the provisions of § 14 of said act.”</p> <p>On July 24,1919, said amount of $3,980,151.67 was paid to the company by the Treasurer and Receiver General.</p>

<p>Mechanic’s Lien. Statute, Construction, Repeal. Constitutional Law.</p> <p>One who, under an oral contract with the owner of certain land made in April, 1915, furnished labor and materials in the construction and repair of houses on the land from April 29,1915, to January 31, 1916, and filed his statement of lien in the registry of deeds on February 24, 1916, was entitled to maintain a petition under R. L. c. 197, for the enforcement of the lien.</p> <p>Section 13 of St. 1915, c. 292, repealing certain sections of R. L. c. 197, must be construed as leaving that statute in effect as relating to a mechanic’s lien which arose by reason of an oral contract made in April, 1915, for the furnishing of labor and material in the construction and repair of certain houses, where the labor and materials were furnished, partly before and partly after January 1, 1916, when St. 1915, c. 292, went into effect.</p> <p>A statute which would be unconstitutional as applied to a certain class of cases and is constitutional as applied to another class, may be held to have been intended to apply only to the class as to which it is constitutional, if that seems in harmony with the general purpose of the Legislature.</p>

<p>Tout under St. 1906, c. 463, Part II, § 245, with a declaration in two counts, the first for damages due to conscious suffering of Catherine Sullivan and the second for the causing of her death in a collision, due to a neglect to give the signals required by § 147 of the statute, at a grade crossing of a highway in North Wilmington with the Boston and Maine Railroad, the defendant being temporary receiver of the railroad corporation under a decree of the United States District Court for the District of Massachusetts. Writ dated May 19, 1917.</p> <p>The defendant demurred, assigning as grounds of demurrer to both counts (1) that no legal cause of action was therein set forth, (2) that no obligation was imposed on this defendant by St. 1906, c. 463, Part II, § 147, to give any signals at a grade crossing, and (3) that no obligation was imposed by any statute upon this defendant to give any signals at a grade crossing; and as an additional ground for demurrer to the second count (4) that neither Part I, § 63, nor Part II, § 245, of St. 1906, c. 463, imposing a liability upon a railroad corporation by indictment or, in substitution therefor, by an action of tort for loss of life at a railroad crossing and on other occasions, applied to this defendant, who was not a railroad corporation within the meaning of said sections.</p> <p>The demurrer was heard by J. F. Brown, J., and was sustained, and the judge thereupon reported the case to this court for determination.</p>

<p>Contract for money had and received by the defendant to the plaintiff’s use. Writ dated March 11,1919.</p> <p>In the Superior Court the action was tried before Raymond, J. Material evidence and exceptions saved by the plaintiff are described in the opinion. The jury found for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Of child, Imputed, Contributory, Motor vehicle. Statute, Construction. Parent and Child. Practice, Civil, Actions tried together.</p> <p>A boy four years and two months of age sitting on the seat of a motor vehicle beside his father, who is operating the vehicle, is too young to be capable of exercising any self-reliant care for his own safety; and, at common law, he is entitled to the benefit of his father’s vigilance and forethought arid is subject to all disadvantages resulting from any failure of performance of that parental duty, ordinary care as well as negligence of the father in that particular being attributable and imputed to the child.</p> <p>An action by a boy for personal injuries received in a collision of motor vehicles . when he was four years and two months of age and was sitting on the seat of one of the motor vehicles beside his father, who was operating the vehicle, was tried at the same time with'an action by the father for damage to the vehicle, and there was evidence of negligence of the father contributing to the injury. The trial judge charged the jury in substance that the son’s “case must stand or fall with his father’s, because of the relationship of father and son,” that “the cases stand or fall upon the due care or negligence of the father,” that, if the father maintained the burden of proving that the defendant was negligent, he was “entitled to have compensation awarded him,” unless the defendant maintains his burden of proving his allegation of contributory negligence on the part of the plaintiff. . . . Broadly, it must appear, in order to enable the plaintiff to recover, that the accident happened and happened wholly on account of the negligence of the defendant, and if you shall decide that in the , case of the senior, then the boy’s case would follow his and he would be entitled’ to have his compensation assessed.” The defendant excepted only “to so much of the charge as stated in substance that in the first action the burden of proof ■was upon the defendant to show want of due care on the part of the driver of the automobile in which the plaintiff in the first action was riding.” Held, that</p> <p>(1) The record presented no question with respect to St. 1914, c. 553, as ap- , plicable to the boy alone;</p> <p>(2) The Legislature intended that any presumption created for the benefit of the father by St. 1914, c. 553, should inure to the benefit of the son in the t circumstances above described;</p> <p>(3) Each plaintiff wasa “person injured” within the words of St. 1914, c. 553, and, the acts and omissions of the father having the same bearing in respect to the safety of his minor son as they had in respect to himself, each plaintiff was entitled to recover upon proof that the defendant was negligent, unless the defendant sustained the burden of proving that the father was guilty of contributory negligence;</p> <p>(4) No error in the instruction harmful to the defendant was shown;</p> <p>(5) Bullard v. Boston Elevated Railway, 226 Mass. 262, 267, and Sullivan v Chadwick, 236 Mass. 130, distinguished.</p>

<p>Certification to the Superior Court, under the provisions «of the workmen’s compensation act, of a decision of the Industrial Accident Board, with accompanying papers, upon a review of weekly payments, that the claimant “was totally incapacitated for work for a period of seven weeks subsequent to October 15, 1919, the date upon which discontinuance of compensation was approved under Part II, § 4 of the act; that compensation is due the employee in the sum of $98; and that all incapacity for work terminated on December 3, 1919.”</p> <p>From the papers accompanying the decision of the board it appeared that F. J. Cotton, the insurer’s physician, reported, after an examination of the claimant on October 8, 1919, among other things that he saw “no reason why this man should be considered disabled for the present unless in one sense he is of course out of training and in need of some hardening up before he could take up heavy work as well as before the injury. This is true after every injury involving idleness for any length of time and would be just as much true three months from now as now. I do not know how heavy his regular work is but unless it is extraordinarily arduous should think he could be given something lighter to do till he gets hardened up a bit and then go back on the job. He did have damage at the rib but it is all solidly healed and it is nothing more than a cause for slight lameness such as many of us have had in similar instances lasting in small measure for considerable time.”</p> <p>H. H. Howard, a physician, examined the claimant on behalf of the Industrial Accident Board on November 22, 1919, and, after further X-ray photographs searching for a rib fracture had been taken on November 24 and on December 13, 1919, reported: “Following a second X-ray which does demonstrate a fracture, I should say that the man’s complaint is entirely justified but as there is no evidence of any non-union at the present time and no evidence of any injury to the pleura, so far as can be -determined by X-ray and physical signs I believe that he is not incapacitated at the present time.”</p> <p>In the Superior Court a decree was entered by order of Hammond, J., in accordance with the decision of the Industrial Accident Board; and the insurer appealed.</p>

<p>Contract for $3,241.34 upon an account annexed for merchandise sold and delivered. Writ dated October 19, 1917.</p> <p>The defendant filed a declaration in set-off in four counts. By the second count, which alone now is material, he claimed $4,052.50, being $5,000, alleged to be due as commission under the contracts described in the opinion as “E” and “F,” less certain royalty credits. i</p> <p>The action was referred to an auditor, who found for the plaintiff in the sum of $1,933.07, and afterwards was tried before Fox, J., upon the auditor’s report as the only evidence. ;</p>

<p>Insurance, Flood, Of goods “in transit.” Words, “Actually in transit,” “Risks of transportation.”</p> <p>A policy of insurance issued to a Boston wool merchant, who purchased wool “in the grease” in California and sent it for grading, blending, scouring and baling to a certain mill in that State situated about half a mile from a railroad, whence it was to be shipped to destinations as ordered by the merchant, insured the merchant against loss as to the wool “at and in transit between ports, and places in the United States and Canada covering same by railroads, ferries, Sound and / or other Inland Steamers and / or other conveyances, and by [certain] Coastwise Lines of Steamers ...” and covered “all risks of fire and navigation and transportation, including floods, including risk in and / or on docks, wharves, piers, and / or bulkheads, landing sheds,'depots, stations and / or platforms awaiting shipment and / or after arrival, from the time of leaving the warehouse, store or factory of shipper until safely delivered to warehouse, store or factory of consignee, or until the assured’s risk ceases, whichever may first occur, but this policy to cover only while goods are actually in transit, and not including risk of craft to or from ocean-going vessel, on export or import shipments . . . also . . . against loss by theft of entire shipping packages while in transit in the custody of any common carrier or other bailee. . . .” Owing to crowded conditions at the mill, the grading, blending, scouring and baling of the wool there were much delayed and sftme of it had remained there for eight months in storage in a warehouse. The mill made no separate charge for storage of the wool. While it was in storage, owing to an unprecedented flood, the wool was damaged. Held, that</p> <p>(1) As a matter of law upon a construction of the policy in the circumstances the wool, when damaged, was not “actually in transit” or in the course of “ transportation; ”</p> <p>(2) In the circumstances and as a matter of law the wool when damaged was not at a place or under conditions which brought it within the scope of the insurance contract.</p>

Contract upon a policy of insurance for loss suffered by the plaintiffs by reason of damage by a flood to wool alleged to have been covered by the policy. Writ dated March 3, 1908. In the Superior Court the action was heard by Hitchcock, J., without a jury, upon an agreed statement of facts and the testimony of two witnesses. Material facts are described in the opinion. At the close of the evidence, the defendant moved for a finding in its favor.

<p>Tort for personal injuries. Writ in the Municipal Court of the ■ City of Boston dated November 26, 1919.</p> <p>The circumstances in which in the Municipal Court the action was dismissed and was reported to the Appellate Division are described in the opinion. The report was dismissed; and the plaintiffs appealed.</p>

Two actions of tort, the second being for personal injuries received when a motor car, in which the plaintiff was riding with her husband who owned and was operating it, ran into a team upon the highway because he became blinded by a glaring headlight upon an approaching electric street car of the defendant, alleged to have been negligently operated. The first action was by the husband for consequential damages and damage to . the motor car.

<p>Tort for the conversion of a revolver, the defendant being a police officer in the police department of the city of Boston and property clerk of that department, and the revolver having been placed in his keeping after having been taken from the person of one who had it without right or the consent of the plaintiff and who'had been convicted under Sts. 1906, c. 172; 1908, cc. 350, 583, of unlawfully carrying it. Writ in the Municipal Court of the City of Boston dated December 26, 1918.</p>

Petition, filed in the Supreme Judicial Court on October 25, 1920, for a writ of mandamus directed to the Treasurer and Receiver General and commanding him not to distribute or pay over in accordance with the provisions of St. 1919, c. 363, any portion of the tax for the year 1920 or for the year 1921 raised from the petitioner under the provisions of St. 1916, c. 269, or St. 1919, c. 324. The respondent demurred.

<p>Municipal Corporations, Authority to operate hospital ambulance.</p> <p>Neither by statute nor by implication has power been given to a town to purchase an ambulance and place it in charge of its selectmen to be used for the general conveyance of its inhabitants to hospitals outside the town whenever occasion should require and without the payment of a special charge therefor.</p> <p>A town in its corporate capacity is not liable for a tort committed under the supposed authority of an illegal and void vote of the town.</p> <p>One injured by an ambulance, operated by the selectmen of a town in accordance with a void vote of the town to carry its inhabitants without charge to hospitals outside the town as occasion might require, cannot maintain an action against the town for such injuries.</p>

<p>Tort for personal injuries to a child alleged to have been caused by negligence of employees of the defendant. Writ dated September 10, 1917.</p> <p>In the Superior Court, the action was tried before Irwin, J. At the opening of the trial and after the pleadings had been read, the plaintiff’s attorney made an offer of what he expected to prove, and the judge thereupon ruled that “such proof would not warrant a verdict for the plaintiff,” and, a verdict for the defendant having been entered by his order, he reported the case to this court for determination.</p> <p>The case was submitted on briefs.</p>

<p>Marriage and Divorce, Annulment of marriage. Fraud.</p> <p>False representations by a man to a woman as to his name, place of residence and situation in life, made with a view fraudulently to procure her marriage to him, will not warrant the annulment of a marriage brought about by such representations, where it does not appear that the man impersonated another or that the woman was mistaken as to his identity.</p>

<p>Judgment. Municipal Court of the City of Boston. Words, “Ripe for judgment.”</p> <p>After the hearing in the Municipal Court of the City of Boston of a writ of review, the judge found for the plaintiff in review and at the request of the defendant reported the case to the Appellate Division. The defendant did not appeal to the Superior Court. The Appellate Division dismissed the report for want of jurisdiction, and the defendant appealed to this court, who decided that the Appellate Division was without jurisdiction and that the acts of the trial judge in such proceedings could be reviewed only by an appeal to the Superior Court. A judgment was entered in the Municipal Court for the first time one week after the receipt of the rescript from this court, and the defendant then appealed to the Superior Court. Upon a writ of error assigning as error that judgment should not have been so delayed in the Municipal Court, and that the appeal to the Superior Court was too late, it was held, that</p> <p>(1) The pendency of the report of the trial judge in the circumstances prevented the case becoming “ripe for judgment” in the Municipal Court under R. L. c. 177, § 2;</p> <p>(2) The case did not become ripe for judgment in the Municipal Court until after the rescript from this court;</p> <p>(3) The judgment entered in the Municipal Court the week following the rescript from this court was entered rightly.</p> <p>Where by an attempted review a genuine question of law appears upon the record to have been raised in proper form, which was recognized as such by the trial judge and is not so manifestly frivolous, insubstantial, obstructive of justice and wanting in jurisdictional elements as to be unworthy of consideration, the statute as to the automatic entry of judgments is not applicable even though ultimately it may be decided that the method resorted to for review of the decision complained of was by invoking a tribunal without jurisdiction in the premises, and that, so far as such attempted review was concerned, the case must finally stand upon that decision unaffected in its integrity.</p>

<p>Contract for $721.75 and interest, alleged to be the value of ¡money and securities delivered by the plaintiff’s intestate to the defendant, a corporation which advertised itself as engaged in the business of purchasing and selling securities, for the purpose of buying and selling securities for his account, the plaintiff alleging that, in the course of her intestate’s dealings with the defendant, numerous purchases and sales were "reported by the defendant to have been made on the plaintiff’s intestate’s account and numerous statements were sent by the defendant to the plaintiff’s intestate advising him of purchases and sales purporting to have been made by the defendant on the plaintiff’s intestate’s account . . . that in truth and in fact the purchases and sales which have been heretofore reported as made in the plaintiff’s intestate’s interest by the defendant have not actually been made but that said purchases and sales so reported are fictitious, non-existent, and that the defendant has never bought or sold any securities for or on account of the plaintiff’s intestate but has simply converted the said money and securities to his, the defendant’s, own use.” Writ dated February 13, 1920.</p>

<p>Contract upon an agreement in writing whereby the plaintiff agreed faithfully and diligently to serve as designer and manager in the factory of the defendants, “which manufactures skirts, suits and coats for Ladies and Misses,” and the defendants agreed to pay the plaintiff $60 per week for the period of six months, the plaintiff further agreeing “to guarantee for the fit of all garments manufactured by the” defendants "and also to fulfill this agreement for the term of six months.” Writ dated July 14, 1919.</p> <p>In the Superior Court, the action was tried before Morton, J. Material evidence and exceptions saved by the defendant are described in the opinion. There was a verdict for the plaintiff in the sum of $1,027.70, which, by order of the judge and consent of the plaintiff, afterwards was reduced to $907.70; and the defendants alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Contract, Construction, Performance and breach. Equity Jurisdiction, Specific performance of contract. Agency, Scope of authority. Equity Pleading and Practice, Master’s report, Appeal. Frauds, Statute of. Sale, Of real estate: memorandum.</p> <p>Upon an appeal by the plaintiff from a decree dismissing a bill in equity for the specific performance of an alleged agreement by the defendant to sell and convey to the plaintiff a forty acre farm in Pembroke, it appeared that a master had found that the defendant owned such a farm and that he had listed it with a firm of real estate agents “as a forty acre farm” and that the agents “as his agents were authorized to advertise for sale a farm of this area;” that the plaintiff answered an advertisement which stated that the farm consisted “of about forty acres, fifteen acres tillage and twenty-five in pasture and wood;” that the plaintiff with an employee of the agent and the defendant inspected the farm, which the plaintiff thought comprised a forty acre farm, and the defendant refrained from indicating in any way that the acreage to be sold was less than that stated in the advertisement although, as subsequently appeared, he intended to retain nineteen acres; that the plaintiff then made a deposit to bind the bargain, for which the agents gave a receipt reciting that it was received as a “Deposit on property of . . . [the defendant] . . . West Elm Street, Pembroke,” with a recital of the price and other terms of sale; that the plaintiff took possession and made considerable outlay for repairs and improvements; that at the time fixed for passing papers the defendant tendered a deed for only twenty-five acres of the farm, which the plaintiff refused to accept. The defendant owned no other land in Pembroke than the forty acre farm. There was nothing in the record to show that the plaintiff and the agent, who acted in good faith, had any other understanding than that a forty acre farm was being sold. The master ruled that, because the memorandum of sale did “not state it was all the property of” the defendant “on said West Elm Street,” it could not be enforced, and added “Even if it had so stated, I should have to find, as I have in fact done, that” the plaintiff had “failed to satisfy me that” the agents “were authorized by the defendant to give a binder covering the land in dispute.” Held., that</p> <p>(1) The memorandum, read in the light of the facts found by the master, should be construed as though it stated that the defendant was selling all his land in Pembroke;</p> <p>(2) The ruling of the master that the memorandum could not be enforced because it did not state that the land sold was all the defendant’s property “on said West Elm Street” was wrong;</p> <p>(3) The statement of the master that the plaintiff had failed to satisfy him that the agents "were authorized by the defendant to give a binder covering the land in dispute,” if treated as a conclusion of fact, was repugnant to his finding as to the authority given to the agents, and must be disregarded; and if treated as a ruling of law, was wrong;</p> <p>(4) The defendant was bound by the ostensible power' given to the agents as recited by the master, and therefore the agents had power to agree to sell the entire forty acre farm;</p> <p>(5) A decree should be entered directing the defendant specifically to perform the contract to sell the entire forty acre farm.</p>

<p>Two petitions, filed in the Supreme Judicial Court on December 24, 1919, one of which was afterwards amended, by two corporations organized under the laws of the State of Maine, each maintaining a factory or factories as well as warehouses and sales offices in Massachusetts and each having real and personal property in other States which it used in connection with the manufacture and sale of stationery, praying that the war bonus taxes, so called, levied under St. 1919, c. 342, which revived and reenacted St. 1918, cc. 253, 255, be “abated, in whole or part, and that the Treasurer and Receiver General of the Commonwealth may be, by the decree of this court, ordered to repay to the petitioner the amount of said tax, or so much thereof as shall have been found to have been so illegally exacted, with interests and costs.”</p>

<p>Partnership. Trust. Voluntary Association. Agency. Equity Jurisdiction, Plaintiff must come into court with clean hands.</p> <p>By the terms of an agreement in writing creating a building trust with transferable shares, it was provided that the trustees should hold the legal title to the trust property and that vacancies in their number should be filled by three fourths in value of the shareholders, who also were empowered to depose and elect other trustees in their place and to change, alter or terminate the trust and direct the sale of the trust property, the proceeds of such sale to be distributed among the shareholders in proportion to their respective interests in the trust and, upon such termination, the trustees to be discharged from further liability. Held, that</p> <p>(1) The trustees were managing agents subject to the control of the shareholders;</p> <p>(2) Instead of a pure trust, a partnership existed for the purpose of carrying on business for the mutual benefit of the shareholders although the legal title to the property stood in the name of the trustees.</p> <p>A purchase of certain real estate owned by the building trust above described was being sought by two persons, one of whom thought it to Ms advantage to own shares in the trust and purchased some and then agreed in writing with the other prospective purchaser that, if either purchased the trust property, the transaction, including the purchase of the shares in the trust, should be treated as made for their joint account and benefit. Thereafter the holdings of shares thus purchased were increased and the holder of such shares, without disclosing either to the trusteed or to other shareholders his private interest or his agreement’ with the prospective purchaser and stating at a meeting of shareholders that the prospective purchaser was the sole purchaser, advocated, urged and voted for the sale and transfer of the property to such purchaser and the sale was consummated. Upon the purchaser thereafter refusing to be bound by the agreement as to the jomt enterprise, the holder of the shares brought against him a suit in equity seeking to enforce that agreement. Held, that</p> <p>(1) The plamtiff and Ms fellow shareholders in the building trust sustained to each other a fiduciary relation, a deliberate violation of which to their loss and to Ms individual gain would not be sanctioned by a court of equity;</p> <p>(2) The plamtiff had engaged in inequitable conduct having an immediate and necessary relation to the matter for which he sought relief and would not be aided by a court of eqmty;</p> <p>(3) It was wholly immaterial that the defendant, also an undisclosed participant, was not harmed but was benefited by the plaintiff’s conduct.</p>

<p>Labor Union. Strike. Unlawful Interference. Equity Pleading and Practice, Decree.</p> <p>An individual contract of employment entered into by an employer with his employee for the term of one year, with provision for an extension for another year, whereby the employee agrees to work for the employer to the best of his skill and ability and in accordance with factory regulations during regular working hours and the employer agrees to pay him a stated rate per hour or the prevailing piece rate, is valid and may be required by the employer as a condition precedent to employment.</p> <p>The right of the employer to impose as a condition precedent to employment the terms of the above ,described “individual contract” is not cut down nor abridged by the fact that a motive of the employer in obtaining the contract is to weaken the influence of a labor union and to impair the power of the strike.</p> <p>A corporation which employed both union and non-union workmen made “individual contracts” of employment, as above described, with many of its employees. A labor union having members among the employees endeavored to persuade the employer to desist from making individual contracts and to bargain collectively with the employees. The employer declined to comply. The officers of the union called a strike in the employer’s factory, established picketing and issued circulars calling for assistance. In a suit in equity brought by the employer against the officers, agents and members of the union to enjoin the strike, there was evidence upon which a master, to whom the suit was referred, found that a purpose of the employer in making the “individual contracts” of employment was to weaken the influence of the union and to impair the power of the strike and that the purpose of the strike, picketing and circulars was to compel the employer to abandon making “individual contracts.”</p> <p>, There also was evidence that the union maintained relays of pickets from twenty-five to seventy-five in number who patrolled the streets in the vicinity and at the main entrance to the factory and called in a loud voice “There is a strike on” “This plant unfair to organized labor” “Strike honor” “Don’t be yellow” “ Join us and help win.” The suit was heard upon the master’s report by a judge who confirmed the report and ordered a decree enjoining the strike. Upon appeal from that decree it was held, that</p> <p>(1) The single justice could determine from the master’s findings, with such material inferences of fact as properly could be drawn, that the strike was for the purpose of compelling the company to do away with “individual contracts” and to recognize the contentions of the union and, his conclusion not being plainly wrong, should not be reversed*,</p> <p>(2) A strike for the purpose of compelling the employer to do away with and discontinue such "individual contracts” was unlawful;</p> <p>(3) If the purpose of the strike was solely to compel the employer to adopt “collective bargaining,” it was unlawful;</p> <p>(4) The strike being illegal, St. 1913, c. 690, was not applicable;</p> <p>(5) The maintenance by the union of relays of pickets from twenty-five to seventy-five in number patrolling the streets in the vicinity, and at the main entrance of the company’s factory calling out at various times the epithets recited in the report, even though not sufficient to frighten or coerce other employees, was unjustifiable;</p> <p>(6) Such conduct also was intended to be an interference with existing contracts;</p> <p>(7) It was plain on the entire report that what was done was the outgrowth of concerted action manifested in various forms but all for the single purpose of forcing compliance with the terms of the union;</p> <p>(8) The granting of injunctive relief was supported by the record and the decree should be affirmed with costs.</p>

<p>Equity Pleading and Practice, Bill, Amendment. Rescript.</p> <p>Where a suit in equity to set aside a contract on the ground of certain specific alleged concealments, failures to disclose and misrepresentations, was referred to a master and was reserved for determination by this court upon reports by the master and exceptions by the defendant thereto and this court by its re-script denied to the plaintiff the relief he sought, a motion by the plaintiff after rescript to amend the bill by inserting a different ground for recovery, which, in prosecuting the suit on the grounds relied on in the original bill, he had deliberately put to one side until the adverse decision by this court, and a motion to recommit the master’s report for further findings of fact as to the allegations contained in the proposed amendment, properly were denied.</p>

<p>Evidence, Competency, Written statement.</p> <p>If, at the trial of an action for breach of an implied warranty of the quality of flour sold by the defendant to the plaintiff, after an inspector of flour, in testifying for the plaintiff, had read to the jury without objection a report in writing which he had made to the plaintiff, the counsel for the defendant had asked for and had received the report and had cross-examined the witness regarding it, the report did not thereby become evidence in the case and, if offered as evidence by the plaintiff, properly may be excluded.</p>

<p>Agency, Scope of employment.</p> <p>At the trial of an action of tort by the executrix of a will for causing personal injuries to and the death of the testator, it appeared that the defendant owned and operated two groceries, which were a mile and a half distant from each other; that at the larger of the stores motor trucks were used for the delivery of goods and to carry goods to the smaller store, while at the smaller store only horse drawn vehicles were used; that a number of employees at the larger store were licensed operators of motor vehicles, and that the plaintiff’s testator was killed by being run into by a motor truck driven by one who was employed at the smaller store. The defendant testified that none but licensed operators were to take the trucks, that “there was a standing order all the time.” The driver testified that in about four months he had driven about six hundred miles, one hundred to one hundred fifty miles being given solely to teaching, and that one of the licensed operators whom the defendant employed always was with him. There was other evidence, which was contradicted, of occasions when he drove the motor vehicle on the defendant’s business without any licensed operator accompanying him. On the night of the accident the driver had finished his work at the smaller store when it was locked up at half past ■ nine, had ridden to the larger store in a horse drawn wagon, then had seen a fellow employee, a licensed operator, who had just put one of the trucks in a garage and who, stating that he wanted to get to a barber shop which was about to close, asked him to take the other car to the garage. He did so, started the car without assistance and drove it alone to the garage, where the accident occurred. Held, that</p> <p>(1) A finding was warranted that the defendant knew that the driver had been taught by his fellow employees to drive the car and that he had driven it alone upon the defendant’s business;</p> <p>(2) A finding was warranted that the driver never had been forbidden to drive the car alone excepting by the general order of the defendant and that that general order had been waived as to him;</p> <p>(3) A finding was warranted that the driving of the car by the driver after his hours of regular employment was not a mere friendly act of accommodation to a fellow employee, but was an act done in an effort to be useful to his employer;</p> <p>(4) A finding was warranted that, at the time of the accident, the driver was acting within the scope of his employment.</p>

<p>Tort, by the administratrix of the estate of Michael Brennan against the owner of premises numbered 302 Warren Street in Boston for causing personal injury to and the death of the intestate, the plaintiff alleging in the declaration that her intestate was a police officer in the city of Boston, that it was his duty to patrol in the night time the vicinity of 302 Warren Street; that while so patrolling and acting under a rule of the police department and of his superior officers making it his duty to enter in the night time stores and premises the doors of which he found open, he found the doors of the premises or store or mercantile establishment numbered 302 Warren Street open, entered the premises and had just crossed the threshold when he was precipitated down an open well; that the "defendant was negligent and careless in allowing said door of her premises to be open and said hatch-way or open well to exist unless such hatch-way was provided with and protected by a good and substantial railing and such good and sufficient trap doors with which to close the same and keeping such trap doors closed except when in actual use by the occupant or occupants of the building having the use and control of same, according to” R. L. c. 104, § 43, “and the amendments thereto.” Writ dated April 24, 1919.</p>

Petition for separate maintenance, filed in the Probate Court for the county of Suffolk on January 16, 1920. In the Probate Court, the petition was heard by Prest, J. Material evidence and rulings of the judge are described in the opinion. A decree was entered for the petitioner; and the respondent appealed, the material facts being reported at his request under St. 1919, c. 274.

<p>Contract, with a declaration in four counts, the first and second counts being based upon an agreement in writing, described below, for the sale by the plaintiff to the defendant of “a four section Kane gas fired steam boiler” and accessories, and the third and fourth counts being upon an account annexed for gas furnished. Writ dated April 3, 1918; also an action of</p> <p>Tort," by the defendant in the first action against the plaintiff therein, for deceit in the sale of the boiler. Writ dated May 8, 1918.</p>

<p>Mortgage, Of personal property: insurance. Evidence, Competency. Practice, Civil, Exceptions.</p> <p>At the trial of a,n action of tort by the mortgagor and owner of certain personal property against the mortgagee for conversion of the property through an alleged wrongful foreclosure of the mortgage, it appeared that the mortgage was given on March 21 of a certain year and provided that, until the note was paid, the mortgagor should keep the said goods and chattels insured against fire in a sum not less than SI,000 for the benefit of the grantee and his executors, administrators and assigns, in such form and in such insurance companies as they should approve; that no policy of insurance had been given to the mortgagee up to the time of the foreclosure, which was two months after the date when the mortgage was given. Proper notices of the sale in foreclosure were given. There was evidence tending to show that the mortgagor and the mortgagee had agreed, when the mortgage was executed, that a man who had acted for them in the drafting of the papers should apply for a policy of insurance and that he did so apply at that tune. He testified that he had called the insurance company on the telephone two or three times before the date of the foreclosure and had received the reply “that they were attending to it and would look into it and see why the policy was not sent.” He further testified that "whenever we apply for a policy, it is always covered by the insurance company until a policy is delivered. Therefore it was covered on March 21,1919.” Held, that</p> <p>(1) There was no evidence that any one ever was asked or had agreed to insure the property, “cover it,” until a policy was tendered to the mortgagee for his approval and acceptance;</p> <p>(2) The testimony that “whenever we apply for a policy, it is always covered by the insurance company until a policy is delivered. Therefore it was covered on March 21,1919,” was not a statement of fact, but merely the declaration of an opinion and was not competent to establish the procuring of oral insurance;</p> <p>(3) The facts not being in dispute, the questions, whether the mortgagor had procured insurance upon the personal property in accordance with the covenant within a reasonable time, and whether he had acted with due diligence in this regard, were not questions of fact for the jury,- but were questions of law for the court;</p> <p>(4) As a matter of law, the plaintiff did not exercise due diligence in procuring the insurance, and it was not procured within a reasonable time after the making of the covenant;</p> <p>(5) The defendant was entitled to a ruling that “there was a breach of condition of the mortgage.”</p>

<p>Tax, Upon income. Corporation, Liquidation.</p> <p>Where a foreign corporation, after it had accumulated assets in excess of its capital stock from a successful management of its business for many years and had used such excess assets as actual working capital in carrying on its business in the same manner as other assets were used, which was necessary in conducting the business in a proper and reasonable manner and which had made the business more profitable, ceased to do business and liquidated its assets, a sum of money paid by it in liquidation to a stockholder, who was a resident of Massachusetts, above the par value of his shares is income and is taxable under ..G._L. c. 62, § 1 (g).</p>

<p>Petition, filed in the Probate Court on May 6, 1920, for the appointment of the petitioner as administrator with the will annexed of the estate not already administered of Edmund M. Wood, late of Natick.</p> <p>The petition was heard in the Probate Court by Lawton, J., and was granted by a decree entered on May 13, 1920. On May 25, W. Edwin Ulmer claimed an appeal as “the holder of stock of Henry Wood’s Sons'Company and Waban Rose Conservatories comprising assets of estate of Edmund M. Wood.” On October 6, 1920, Ulmer moved to amend his claim of appeal by inserting before the word “assets” the word “all” and after the word “ assets ” the word "formerly.” The motion was heard by L. E. Chamberlain, J., and was dismissed for want of jurisdiction.</p> <p>In this court the administrator moved that the appeal be dismissed for the reason that the appellant was not a person aggrieved by the decree from which he appealed.</p>

<p>Contract, Performance and breach, Validity.</p> <p>The declaration in an action of contract against an express company was in two counts, it being alleged in the first count in substance that the plaintiff delivered to the defendant American money and that the defendant agreed to pay it or its equivalent to the plaintiff’s sister in Russia and that the defendant did not perform its agreement or return the money to the plaintiff; and the second count being for money had and received by .the defendant to the plaintiff’s use. At the trial it appeared that the plaintiff delivered the money to the defendant with a fee for its transmission and that the parties exchanged documents containing the following provision: "It is understood and agreed that this transfer is to be made without responsibility on the part of the . . . Company or its correspondents, for any loss occasioned by errors or delays in the transmission of the message by telegraph or cable companies, or for the acts or omissions of the correspondents or agencies necessarily employed by the . . . Company in the transfer of this money, all risks for which are assumed by the sender.” It also appeared that, by cabled instructions of the defendant to its correspondent in Petrograd in Russia, the requisite amount in Russian money was transmitted to its correspondent bank nearest the plaintiff’s sister, whence in usual course the transmission would be completed by Russian postal money order. The plaintiff introduced evidence tending to show that his sister never received the money; that he could not speak English; that, when he paid the money to the defendant and signed and received documents, neither he nor his only companion could read or understand English, and that neither paper was read or explained to him. There was no evidence that the defendant’s representative in the transaction knew or was informed that the plaintiff could not read nor understand the contents of the paper or that the plaintiff’s signature was procured through fraud; nor was there evidence that the sub-agents of the defendant in Russia were not in every way suitable. Held, that</p> <p>(1) Requests by the plaintiff for rulings that he was entitled to recover on the first and the second counts, respectively, were denied properly;</p> <p>(2) It could not be ruled in the circumstances that the provisions of the .contract between the parties exonerating the defendant from liability, quoted above, were invalid because the plaintiff could not speak or read English and their contents were not read to him.</p>

<p>Agency, Ratification. Estoppel.</p> <p>In a suit in equity by a woman to set aside a deed and conveyance of real estate made in the plaintiff’s name by one who purported to act as her attorney under a general power of attorney but who, the plaintiff alleged, acted beyond the authority given, it appeared that, after the conveyance, the attorney immediately wrote the plaintiff a full statement of the entire transaction, enclosing a check covering a balance shown to be due to her by the statement; that on the second day after the deed was delivered and after she received the letter and check from the attorney, she went to the registry of deeds and fully examined all the deeds and instruments in connection with the transaction and learned its details; that within nine days of the transaction, with full knowledge of what had taken place, she deposited the check in her personal bank account and drew upon it until a merely nominal sum, compared to the amount of the check, remained in the account. A judge who heard the case found that, if "the conveyance was not authorized by the power of attorney, as the plaintiff contends, then it seems to me upon the evidence1 reported that the substituted performance of the original agreement of sale was ratified by the plaintiff.” Held, that the finding was warranted and that the biff should be dismissed.</p>