Volume 238 — Massachusetts Reports

<p>Bill in equity, filed in the Superior Court on July 14, 1919, seeking to establish title in the plaintiff to two $20,000 registered bonds of the city of Boston, alleged to have been delivered to the plaintiff as a gift inter vivas by Martha J. Brett, the defendants’ testatrix, three years and ten months before her death.</p> <p>The parties agreed to a stipulation in substance that the bonds which were the subject of the suit should remain in the custody of the defendants at the Home National Bank in Brockton, unassigned and unincumbered as to principal and interest, except that the proceeds of either of them upon maturity might be received by the defendants and placed on deposit with the bank.</p> <p>The suit was referred to a master. Parts of the master’s findings were in substance as follows:</p> <p>“After the death of the mother of Mrs. Brett in 1886, a marked change appears in the relations between her and the plaintiff, who, theretofore, had been doing the housework for Mrs. Brett. The plaintiff became more of a companion than a helper. She now did all the cooking and continued this up to the death of Mr. Brett. The drudgery of the heavy housework was transferred to others and the washing was sent out. After Mr. Brett’s death in 1892 the relation became still closer. They were together practically all the time with a fondness and affection, each for the other, the extent and warmth of which was properly described in the bill as ‘ closely akin to the relationship of parent and child.’ The evidence of this love and devotion comes not alone from the plaintiff, but from relatives and friends of both parties. The unanimous testimony of a large number of witnesses shows a constancy of affection, wonderful in its strength and simplicity. From no source is there a discordant note. Its existence is not disputed or seriously questioned. A report somewhat in detail on the phase of the case seems essential as a setting for subsequent events. Deceased often addressed plaintiff as 'Darling Delia;’ ‘You will never leave me Delia,’ was a common expression to the plaintiff; ‘You have given your life for me, you would have a nice home and family only for me,’ was said to the plaintiff in the presence of witnesses. Referring to the plaintiff, deceased has made use of these expressions; ‘I love Delia,’ ‘I could not live without her,’ ‘She is the only friend that will do anything for me,’ ‘She is the only one I love,’ ‘Delia has sacrificed her whole life and she will be well repaid,’ ‘She will always have a home and money enough to run the house,’ ‘She has looked out for me and I shall for her.’ ‘All happiness has come into my life through her.’ After the deceased had given the plaintiff a deed of the homestead in 1914 as reported later, and after the alleged gift of the bonds in 1915 and on the second Sunday before her death she said, ‘I have given the house to Delia and have provided for her to live comfortable.’ These statements were also made referring to the plaintiff; 'She has seen me through faithfully.’ 'She is the best friend I ever had.’ ‘She has nursed me night and day.’ ‘I have given her the house and means to keep it.’ Y wanted things fixed so she would have everything I ever had.' It was a common occurrence for the deceased to throw her arms about the plaintiff and kiss her, using endearing terms and avowals of love, exacting promises that she would never leave her. Whenever the deceased was tired and nervous she always found relief in the caress of the plaintiff. No other person was able thus to minister to her on these occasions. These demonstrations of affection with a request that she would return soon frequently occurred when the plaintiff would leave the house for a walk or to do an errand. For twenty-five years before her death the deceased never left home for pleasure, riding, visiting friends, or shopping without the companionship of the plaintiff. Starting together for church on Sundays they would separate only to attend their respective place of worship — plaintiff to the Catholic Church, and the deceased to the Unitarian. They occupied adjoining sleeping rooms on the second floor of the house, the beds being so placed that the occupants could see each other after retiring. Upon occasions in their earlier life the deceased did not like to sleep alone, and for a period of fifteen or sixteen years they slept together most of the time, and for the last twelve years, all of the time, alternating between the two rooms. They were thus together on the night when the deceased passed away. Upon that night the plaintiff ministered to her when she complained of not feeling as well as usual, and requested that she might call a doctor. The deceased did not care for medical attendance, but insisted that the plaintiff should not leave her, and her last words addressed to the plaintiff were, ‘You are right there.’ She died in the plaintiff’s arms. . . .</p> <p>“On March 31, 1914, the deceased executed and delivered to the plaintiff a deed of the home place, reserving to herself the right to use and occupy the premises during her life. The land and buildings were valued at that time at about $20,000. The lot was situated on the north side of Church Street [in Brockton] about one hundred and twenty feet east of Main Street, the prim cipal thoroughfare in the city. It had frontage of ninety-two feet. The house was a substantial structure, two stories high, in good repair, and in a desirable locality, rapidly passing however from a residential to a business section. At the request of the deceased, the deed was prepared through the assistance and under the direction of her cousin and business adviser, Charles Howard. In his presence the deed was delivered to the plaintiff by the deceased with this statement: ‘Delia, this is your house and you will never, have to leave it as long as you live. No one can put you out.’ ‘Put the deed away and keep it.’ . . . The deceased further stated that this was not all she ought to do for the plaintiff, and it was not all she intended to. The deceased told the plaintiff that it would be advisable, but not necessary, to have the deed recorded. . . .” The deed remained in the plaintiff’s possession, unrecorded, until the death of Mrs. Brett, when it was recorded at the suggestion of the plaintiff’s counsel. “After the transfer of the property the relations of the parties with reference to it continued as before, the deceased paying the taxes and assessments, making repairs and improvements.”</p> <p>The circumstances of the gift of the bonds on March 25, 1915, are described in the opinion.</p> <p>The master further found that all checks for interest on the bonds were drawn and mailed to Martha J. Brett at her address, 24 Church Street, Brockton, “and all were indorsed by the deceased, stamped in each instance by the bank, ‘Cash’ indicating that cash had been paid when presented at the bank. All such checks were delivered to the plaintiff by the deceased and they were cashed at the bank by the plaintiff and the money received by her paid over to the deceased by the plaintiff in accordance with her usual practice.”</p> <p>The master’s summary of his findings was as follows: “I find the deceased was at all times possessed of a clear, vigorous mind, and a full mental capacity to make the gift in question. There is no evidence of fraud or undue influence exercised by the plaintiff or any other person to bring about the gift. No force, no threats, no duress, deception or importunity appears in the case; but rather a close intimacy a well nigh perfect confidence and an abounding affection between two congenial life companions. From this relationship, from an oft expressed purpose and intentian, from statements made to the plaintiff at the time, from the actual physical delivery in hand of the bonds, from their retention by the plaintiff in her possession for four years and up to the death of the deceased, from admissions made to the plaintiff and others after the transaction confirming it, I find the deceased intended to make and did make a complete and absolute gift of these bonds to the plaintiff. I find that both so regarded it. Unless the court shall find to the contrary on the reported facts relative to the payment to the deceased of the interest accruing from the bonds, there was no retention of control or dominion over the bonds by the deceased, rendering the transaction of March, 1915, other than a present irrevocable gift.”</p> <p>Other material findings of the master are described in the opinion. The suit was heard upon the pleadings and the master’s report by Fosdick, J., by whose order were entered an interlocutory decree confirming the report, and a final decree for the plaintiff. The defendants appealed..</p>

Bill in equity, filed in the Superior Court on January 8, 1920, under R. L. c. 159, § 3, cl. 7, seeking to establish a debt of $2,765.68 alleged to be due from the defendant Phillips to the plaintiffs under a contract to rebuild and renovate a motor vehicle and to reach and apply toward payment thereof shares of the capital stock of the defendant Avery Chemical Company, a Massachusetts corporation, alleged to be owned by the defendant Phillips.

<p>Bill in equity, filed in the Superior Court on June 12,1918, by ten taxable inhabitants of the town of Westwood against the town, its treasurer, its selectmen and board of fire engineers, to enjoin the carrying out of a vote of the town at a special meeting to appropriate $2,000 for the purchase of a certain chemical engine.</p> <p>The suit was heard by Hammond, J. Material evidence and findings of the judge are described in the opinion. He ruled that Rule 4 of the by-laws of the town, quoted in the opinion, was not complied with before the passing of the vote, adjudged the appropriation invalid and ordered a decree for the plaintiffs. The defendant alleged exceptions.</p>

<p>Tort for personal injuries alleged to havé been received by the plaintiff while employed by the defendant as a laundress at his home and to have been caused by a nail protruding from the back of a wash-board. Writ dated February 8, 1917.</p> <p>In the Superior Court, the action was tried before J. F. Brown, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered for him. The motion was denied. The jury found for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.</p>

<p>Appeal from a decree of the Probate Court of the county of Middlesex allowing the will of Ellen V. Pierce, late of Somerville.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 18,1920, by a stockholder in the Atlantic Corporation, a corporation organized under the laws of Maine, against that-corporation, the Mason Machine Works, the Mason Machine Works Company and the New England Trust Company, all corporations organized in Massachusetts, certain individuals domiciled in Massachusetts, collectively referred to as the Mason Interests, and certain other individuals domiciled in Massachusetts who were voting trustees of the stock of the Atlantic Corporation. The allegations of the bill were in substance that the plaintiff and the Mason Interests engaged in a common enterprise of constructing cargo vessels through the instrumentality of the Atlantic Corporation and the Mason Interests through their lawyer, who also was the plaintiff’s lawyer, conceived and put into effect a plan whereby the Mason Interests fraudulently obtained control of the Atlantic Corporation and the profits of the enterprise, deprived the corporation of its assets and rendered the plaintiff’s interest as a stockholder and creditor valueless. The prayers of the bill in substance were that a receiver be appointed for the Atlantic Corporation, that profits and money paid by or due from the United States Shipping Board Emergency Fleet Corporation to the Atlantic Corporation and amounts realized from the sale of its property and all funds accruing to the Atlantic Corporation on account of its contract with the Fleet Corporation be declared a trust fund for the benefit of the plaintiff and the Mason Interests as their interests might appear, that the trust fund when established be ordered distributed to the beneficiaries, and for further relief.</p> <p>The defendants filed an answer, including therein a demurrer upon the following grounds:</p> <p>" (1) That said bill is multifarious.</p> <p>“(2) That the court has no jurisdiction to appoint a receiver of the plant or property of the Atlantic Corporation situated outside the Commonwealth of Massachusetts.</p> <p>“ (3) That the court has no jurisdiction to appoint any receiver of the Atlantic Corporation prior to the appointment of such receiver by the courts of Maine, under the laws of which State said corporation was organized and exists.</p> <p>" (4) That a determination of the cause of action purported to be stated in said bill would involve the. examination and adjudication of the internal affairs of said the Atlantic Corporation, a foreign corporation organized and existing under the laws of the State of Maine, and that the court has no jurisdiction or authority to make such examination and adjudication.</p> <p>“(5) That this court has no jurisdiction to grant the relief prayed for, to adjudicate that any assets and funds accruing to the Atlantic Corporation on account of said contract with said Fleet Corporation constitute a trust fund, or to order the distribution thereof or to liquidate said the Atlantic Corporation or order any distribution of its assets or to adjudicate as to the ownership of the entire stock of said corporation or to order any of said stock cancelled.”</p> <p>The case was heard upon the bill and demurrer by Jenney, J., who ordered the demurrer overruled and, at the request of the defendants, reported the case upon the bill and demurrer for determination by this court with the provision that “If the demurrer is sustained upon any ground which can be cured by amendment, the pláintiff may amend and the case is to stand for hearing on its merits; otherwise the bill is to be dismissed.”</p>

Tort for personal injuries alleged to have been caused by the-plaintiff being run into by a baggage truck of the defendant as she alighted on the station platform at Salem on December 14,. 1911. Writ dated November 12, 1913. In the Superior Court, the action was tried before Dubuque, J. The testimony of the plaintiff is described in the opinion.

<p>Bill in equity, filed in the Superior Court on July 19, 1917, and afterwards amended, alleging that, by a contract in writing, which is set out below, the plaintiffs and the defendants agreed to dissolve a partnership enterprise which they had undertaken under the name “Southern Utilization Company,” that the plaintiffs had offered full performance of the contract on their part, and that the defendants had repudiated the contract and had brought an action at law against the plaintiffs. The prayers of the bill were for a confirmation of the agreement, or for a dissolution of the partnership, for a fixing of the amounts which either party should pay to the other and for the enjoining of the action at law.</p> <p>The agreement, exclusive of the signatures of the parties, was as follows:</p> <p>"Southern Utilization Co.</p> <p>Cotton Mill Waste, Charlotte, N. C.</p> <p>“We, the undersigned, agreed to the following proposition with regard to the dissolution of the partnership between us known as the 'Southern Utilization Company.’ ,</p> <p>“Josiah Linton & Company agree to buy out the interest of Noonan, Lyons & Company in the following manner:</p> <p>"They propose to give Noonan, Lyons & Company one hundred cents on the dollar for their five thousand dollars invested in the Southern Utilization Company, plus one half the profit or less one half the loss at the closing of the books January twenty fourth or twenty fifth, nineteen seventeen. Also agree to pay one hundred cents on the dollar for all moneys loaned by Noonan, Lyons and Company to the Southern Utilization Company over and above the amount invested plus six per cent interest, it being understood that no interest shall be paid on the original five thousand dollars invested. Inventory to be taken by Austin J. Thompson representing Noonan, Lyons and Company and John T. Miller representing Josiah Linton and Company on- the afternoon of today, January twenty third. Prices to be placed on inventory by Joseph M. Noonan representing Noonan, Lyons and Company and William G. Beck Jr., representing Josiah Linton and Company on January twenty fourth. It being understood that Noonan, Lyons and Company are not liable for any other claims of the Southern Utilization Company arising after the date of the closing of the books, nor on the other hand are they able to make any additional claims on Josiah Linton and Company or the Southern Utilization Company. All accounts receivable and payable and all future obligations are assumed by Josiah Linton and Company. It is further understood that all contracts closed in the name of the Southern Utilization Company shall be assumed in their entirety by Josiah Linton and Company.</p> <p>"With regard to Commission Mills. Josiah Linton and Company agree to relinquish every and all claims on all commission mills whose accounts are now in the hands of the Southern Utilization Company, dating from January twenty first to December thirty first, nineteen seventeen inclusive. All commissions earned on all stocks sold for the account of tnese -nulls to any and every source belongs to Noonan, Lyons and Company and Noonan, Lyons and Company in turn for Josiah Linton and Company having turned over to them all of these commissions and accounts, agree to pay Josiah Linton and Company the sum of fifteen hundred dollars ($1500.00) payable in thirty days from the closing of the books January twenty fourth or twenty fifth. It is further understood that if any of these commission mills do not agree to place the selling of their merchandise in the hands of Noonan, Lyons and Company and prefer to leave same in the hands of the Southern Utilization Company, that the Southern Utilization Company owned by Josiah Linton and Company will protect Noonan, Lyons and Company and give them all commissions on all stocks sold for such mills.</p> <p>“It is understood that all moneys owing to Noonan, Lyons and Company, both their investment and moneys loaned, will be paid to Noonan, Lyons and Company by the Southern .Utilization Company in fifteen days from the date of the closing of the books, January twenty fourth or twenty fifth.”</p>

<p>Contract “for necessaries,” for $213.50 and interest upon an account annexed for the purchase price of one scarf, one, book, one table, four set saucepans, alleged to have been sold in November, 1917, and one coat alleged to have been sold in January, __ 1918. Writ dated April 23, 1918.</p> <p>In the Superior Court the action was tried before Fosdick, J. The defendant, called by the plaintiff, testified that he was worth from $8,000 to $10,000 at the time of the sales in question. The testimony of the plaintiff’s credit manager as to the notice of the defendant to the plaintiff not to extend “Winifred B. Hedtler” further credit, referred to in the opinion, was as follows: On January 2, 1918, the defendant called the witness on the telephone. “He asked if we had an account in his name. I looked it up and found that we had, and told him so. He asked us not to extend any further credit, and I asked him to confirm that in writing, which he did the day following, the following morning,</p> <p>I think.” The letter of confirmation, which was dated January 2, read as follows: “Confirming telephone conversation, I instructed you not to give any further credit to my wife, Winifred B. Hedtler.”</p> <p>Other material evidence is described in the opinion. At the close of the plaintiff’s evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies; Procedure: appeal, findings by Industrial Accident Board, decree by Superior Court. Agency, Scope of employment.</p> <p>From a decision of the Industrial Accident Board and accompanying papers relating to a claim by a widow of an employee under the workmen's compensation act, which were certified to the Superior Court, it appeared that the employee received fatal injuries by being struck by a railroad train as he was on his way home from his work; that the employer’s plant was so situated as to furnish two other routes which the employee might have followed to reach his home, but that both of them were “impractical and dangerous;” that the route which the employee was following when injured ran from the plant along a right of way parallel with the railroad track to a gate at the side of the railroad location, which was opposite the dead end of a public street on the other side of the location, where the employee lived, and was nearly opposite a station of the railroad; that at this point there were planks between the rails of the tracks for the passage of teams and, on both sides of the location, gates which were kept locked a part of the time; that, when the employee entered upon his employment, the superintendent accompanied him over the route which he was using when injured; that he continued to use it twice a day in going to and from Ms work; that the employer’s superintendent knew that he so used it, that other employees living in the same direction from the plant as he did also used it, and that the practice was well known to the railroad corporation and to the employer. It did not appear that there was any express provision of the contract of employment that the employee should be considered in the employer’s service while crossing the railroad tracks in going from the plant to his home, nor that the employee had acquired any right to such use of the railroad location. The train wMch struck the employee was not owned by nor connected with the business of the employer. The Industrial Accident Board found that there was “no question ... as to the employee’s right, as one of the workmen employed by the subscriber, to enter and cross the railroad at the place where the injury occurred;” that the employee’s "employment relation, under his contract of hire with the subscriber, began at the time he left the public highway and entered the railroad right of way abutting the premises of said subscriber as a licensee by reason of his employment ... on his way to work, and did not terminate until he left the railroad tracks to enter the public highway upon his return home from work;” and that compensation should be awarded. Held, that</p> <p>(1) It'could not be said that, as a matter of law in the circumstances, the employment relation continued until the employee reached a public way;</p> <p>(2) If the decision of the Industrial Accident Board that the employment relation continued until the employee reached a public way was a finding of fact, it was erroneous;</p> <p>(3) In crossing the railroad tracks the employee was at best a mere licensee;</p> <p>(4) The finding of the Industrial Accident Board, that there was no question as to the employee’s right as one of the employees of the subscriber to enter and to cross the railroad where the injury occurred, was not warranted;</p> <p>(5) There could not be read into the contract of employment by implication, owing to the failure of the employer to provide another way to and from the factory which was convenient and safe, a provision that the employee should be considered as acting in the course of his employment while crossing the tracks going to his home;</p> <p>(6) As a matter of law the employee, when injured, was on his own business and was not acting in the course of his employment.</p> <p>When, in proceedings under the workmen’s compensation act, copies of a decision of the Industrial Accident Board and all papers in connection therewith are certified to the Superior Court under G. L. c. 152, § 11, it is the duty of that court to exercise its judicial functions and to enter such a decree as will enforce the legal rights of the parties as disclosed by the facts appearing on the record.</p>

<p>Bill in equity against the Brockton Savings Bank and one Merton F. Ellis, filed in the Supreme Judicial Court on November 10, 1919, and amended after rescript following the decision reported in 235 Mass. 476,* by alleging that the bank, to secure notes signed by both the plaintiff’s husband and the plaintiff, had received mortgages from the plaintiff’s husband, that the plaintiff had joined therein to release dower and homestead rights and other rights by statute, and that redemption thereof on terms to be determined by a single justice had been ordered by the rescript; that the bank refused to make a legal assignment to the plaintiff of the mortgages upon the plaintiff paying to it the amount due thereon and costs and also objected to the entry of a final decree directing it to assign the mortgages to the plaintiff; that the defendant Ellis objected to the entry of any decree directing the bank so to assign the mortgages or to any decree that would give the mortgages in the hands of the plaintiff any status other than that of total discharge and cancellation of the debt; that the plaintiff did not receive any consideration from the defendant bank or from her husband for signing any of the notes or releasing her dower right, did not execute any of the notes as the principal debtor or in any capacity other than that of surety in the same manner in which she had released her dower in the mortgages securing said notes; that she had no money or property of any kind upon which to obtain the necessary money to redeem the mortgage held by the defendant bank, and that, in order tó procure the funds necessary to redeem, it was necessary for her to have the mortgages either legally available or available through adjudication in equity as security with power to transfer or assign good title to another. The prayers of the bill as amended were that, upon payment by the plaintiff to the defendant bank of the principal, accrued interest and costs of foreclosure of the mortgages, the plaintiff be subrogated to the security of the mortgages and to all the rights the defendant bank had in, to and under the mortgage securities and that the plaintiff be decreed the right and power to transfer a good title to the mortgages to others including all the rights and powers that the defendant bank had in, to and under the mortgages and mortgage securities, and “for such other and further relief as may be necessary for the plaintiff to prevent the extinguishment of her inchoate right of dower by reason of her executing the mortgages.”</p> <p>The defendant Ellis demurred to the bill as amended on the following grounds:</p> <p>“1. That the plaintiff cannot set up the fact that she received no consideration for signing the notes ... as co-maker with her husband . . . and especially that she cannot set this up as against defendant Merton F. Ellis, a bona fide purchaser by virtue of his second mortgage on said premises.</p> <p>“2. That it is immaterial whether or not said plaintiff has sufficient funds of her own to redeem said Brockton Savings Bank mortgages and that her rights in said property cannot be increased owing to this alleged fact, provided the same were true.</p> <p>"3. That, according to the opinion rendered by the full court in the above entitled case, a decree for redemption as to the mortgages held by the bank, the terms and conditions of which are to be settled by a single justice, precludes the single justice from extending the rights of Mary L. Ryder, the plaintiff, beyond a redemption and that the question of subrogation is a matter to be settled in a different cause of action.</p> <p>"4. Said defendant Ellis says that the plaintiff has no right in law or in equity to amend her bill of complaint at said stage of the proceedings.”</p> <p>The demurrer was heard by Braley, J., and was overruled.</p> <p>The defendants then answered. The defendant Ellis’s answer in substance specifically traversed the material allegations contained in the amendment to the bill. A material allegation in the answer of the bank was that application had been made to it by both the plaintiff and the defendant Ellis to assign its three mortgages to them, that the bank during this controversy had refused to assist either party by assigning the mortgages but had “left all parties to the controversy on their legal rights; ” that the defendant bank also has “declined to go on record in this cause as assenting to a decree ordering” it “to assign its mortgages to the plaintiff for the reason that said assent would be equivalent to a voluntary assignment, which the defendant bank does not feel it should do to either party.”</p> <p>The suit then was heard further by Braley, J., by whose order a final decree was entered, without a report of evidence or findings, dismissing the bill as to the defendant Ellis without costs, and decreeing “that as to the defendant bank the plaintiff is entitled to redeem from all the mortgages held by said bank as disclosed by the record,” adjudicating the amount due by the provisions of the mortgage, and ordering “that if the plaintiff within fifty days from the date of entry of this decree tenders to said bank all of said sums and interest together with aúy interest which may accrue ... to the date of the tender to the defendant bank together with the costs of suit of said bank taxed in the sum of $446.45, said bank is to deliver to said plaintiff the said mortgages and the notes thereby secured; and it is further adjudged and decreed that thereafter the said plaintiff shall hold title to said mortgages and said notes as if she were an assignee in due course with all the rights of enforcement and transfer and all other rights that the original holder, the defendant bank, has. But in default of the payment of said sums hereinbefore stated with interest thereon and costs of suit, on or before the said timer of payment as aforesaid, it is ordered and decreed that said bill shall stand dismissed out of this court and that no person claiming from or under said original plaintiff shall have any further claim or right to redeem said premises from the force and effect of said mortgages as set forth in the plaintiff’s bill.”</p> <p>The defendant Ellis alone appealed.</p>

<p>Practice, Civil, Auditor, Report by judge. Contract, Construction,.Performance and breach. Evidence, Extrinsic affecting writings.</p> <p>In an action at law, the correctness of rulings by an auditor upon requests for rulings is not before this court upon a report by a judge of the Superior Court, made after he had ordered judgment for the plaintiff upon the auditor’s report and the pleadings, where it does not appear that the question as to the requests was raised before the judge.</p> <p>Upon a report to this court by a judge of the Superior Court of an action at law merely upon an auditor’s report and the pleadings and the ordering by the judge of judgment for the plaintiff, the question of the correctness of the disposition of a motion to recommit the report of the auditor is not open.</p> <p>A contract in writing for the alteration of a building contained provisions for plumbing and painting but no provision dealing with steam heating, and provided that “for all work above the cellar” the contractor should receive $5,900, and “For the work to be done upon the cellar,” $300. In the specifications accompanying the contract, there was no detail as to the make or size of a boiler, no mention of thje size or kind of radiators and none of the other particulars ordinarily set out in specifications for steam heating. A paragraph in the specifications with the caption, “Plumbing and Risers for Steam Heat,” stated, “All risers to be put in building for steam heat as marked on plan. Plumber to figure size of boiler and radiators for entire building, sectional boiler to be put in, all water closets and sinks put as shown on plan,” etc. The cellar plan indicated the location for a boiler and the floor plan locations for radiators. At the trial before an auditor of an action by the contractor for the contract price, the auditor ruled that the contract was ambiguous as to whether the contractor was to install a boiler, admitted paroi evidence upon the question and found that the contractor was not obliged to install a boiler, radiators or any other part of the heating system. The boiler alone would have cost $500. After a hearing by a judge without a jury in the Superior Court, judgment was ordered for the plaintiff and the case was reported to this court for determination upon the auditor’s report, the contract, the specifications and the plans. Held, that</p> <p>(1) No exception raising the question of the admissibility of the paroi testimony as to the meaning of the contract having been saved at the trial in the Superior Court, that question was not open on the record;</p> <p>(2) It could not be said as a matter of law that the auditor was wrong in his finding as to the meaning of the contract.</p> <p>The auditor in the action above described further found that the owner was entitled to deductions amounting to $135.65 from the contract price of $5,900 •which were included in eleven items, only two of which exceeded $10, one of them being $25 for painting done by the owner in pursuance of a special agreement between the parties. The other, amounting to $65, was for defective work in covering with a metal sheathing the walls and ceilings of stores,' as to which it appeared that, the owner not being able to get the covering he wished, his agent directed the contractor “to get and use one pattern of metal sheathing and make the best jdb he could of it,” as the defendant was “ in a hurry for the stores.” The contractor did as directed, but the work was not performed in a good and workmanlike manner. The auditor found that the contract was substantially performed. Held,,-that the finding was warranted.</p>

<p>Contract by the trustee in bankruptcy of Maynard A., Floyd H. and James W. Losee, co-partners under the firm name “Bank of Trenton,” originally against Matilda M. Chesbrough and, after her death intestate on March 11, 1915, against the administrators of her estate, the declaration as amended being in six counts. The first three counts were upon negotiable promissory notes, each of the par value of $5,000, the first dated March 25, and the second and third dated June 8, 1912, and, in other particulars, described in the opinion. The fourth and fifth counts were upon notes which were taken up by the plaintiff’s bankrupts when they discounted the notes described in the second and third counts. The sixth count was for money had and received “to the plaintiff’s use.” Writ dated September 3, 1914.</p> <p>In the Superior Court the action was tried before Hall, J., upon the notes, a Colorado statute described in the declaration and an agreed statement of facts, from which it appeared that the note described in the first count of the declaration, with the two described in the fourth and fifth counts, were authorized at a meeting of the board of directors of the Boston Colorado Power and Water Company in Chicago in the State of Illinois, on March 23, 1912, and were then indorsed by Mrs. Chesbrough and others. The resolution authorizing the issue stated that the notes were to be delivered "to the treasurer, who, with the advice of and in conjunction with Mr. C. H. Lord, is to discount said notes for the purpose of paying or refunding debts for which the company is obligated, and for caring for the company’s needs until the underwriting . . . [then planned] ... is effectuated. Said notes to be endorsed by Richard Irvin, Fremont B. Chesbrough, J. Wilbur Kay, Frank D. Patterson and M. M. Chesbrough.” C. H.Lord, referred to in said resolution, was then acting and, since the organization of Boston Colorado Power and Water Company, had acted as its financia], agent. He also had acted as financial agent of Boston Colorado Power Company since shortly after its organization. He was, when the resolution was passed, assisting in negotiating the bonds of Boston Colorado Power and Water Company and in arranging to finance the company and in raising money for its needs.</p> <p>On March 26, 1912, Lord presented the notes described in the fourth and fifth counts of the declaration to the Bank of Trenton, who discounted them and applied their proceeds to taking up other obligations of the maker of the note. On April 17, 1912, the note described in the first count was likewise used by Lord. The agreed statement further recites: “The notes described in the second and third counts of the plaintiff’s declaration were signed and indorsed by the Boston Colorado Power and Water Company, and were presented by said Lord for indorsement to the several indorsers specified in the resolution of March 23, 1912, and the said Lord obtained the indorsements which appear on said notes from each of the parties whose name so appears. The said Lord, after obtaining these indorsements as aforesaid, on June 8, 1912, presented said two notes at said Bank of Trenton for discount, and the said notes were discounted by said bank, and the proceeds used to pay and take up the two above mentioned notes dated March 23, 1912, and described in counts 4 and 5 of the plaintiff’s declaration.”</p> <p>Other material facts and the defendants’ offer of proof are described in the opinion. The plaintiff relied only upon the three notes described in the first three counts of the declaration. The judge ordered a verdict for the plaintiff in the sum of $22,000.07, and reported the action to this court for determination, judgment to be entered on the verdict if the ruling was right; otherwise, the action to be remanded to the Superior Court for further proceedings.</p>

<p>Contract, with a declaration in three counts. Writ dated February 9, 1917.</p> <p>The first count of the declaration was upon the contract in writing described in the opinion.</p> <p>In the- second count the plaintiff alleged in substance that on or about August 1, 1916, the plaintiff and the defendant entered into an agreement by which the defendant agreed to continue shipping cars consigned to the defendant’s agent for the purpose of supplying the large trade in Boston and vicinity and, from the proceeds received from the sale of cars, the expenses were to be paid, the plaintiff’s obligations to banks and creditors were to be paid and the plaintiff’s good will was to be preserved, and the business was to be conducted in the plaintiff’s name; that on or about January 1, 1917, the defendant utterly ceased to fill orders, .to deliver or to consign cars, neglected and refused to apply the proceeds to the payment of debts incurred by the plaintiff to preserve its good will, and utterly refused to ship or deliver or consign cars in accordance with the agreement with the plaintiff.</p> <p>In the third count, the plaintiff alleged in substance "that on or about January 24, 1916, it entered into a contract with the defendant by the terms of which the defendant agreed to sell and the plaintiff agreed to buy certain trucks which the plaintiff was to sell in Boston and surrounding territory, which trucks were manufactured by the defendant company,” and “in effect a sales agency was established in Boston by the defendant through the plaintiff;” that, under “ and by virtue of the contract, the plaintiff performed and was ready to perform at all times the contract on its part to be performed; that on January 24, 1917, the defendant entered into an agreement with the plaintiff, [¡which the defendant afterwards broke,] by the terms of which, provided that the plaintiff would surrender the contract hereinabove mentioned which had been entered into between the plaintiff and the defendant, and provided that the plaintiff would return to the defendant the automobile parts in its possession'and owned by it, the defendant would consign trucks and parts to the defendant’s agent for the purpose of assisting the plaintiff in the conduct of its business, that of selling the defendant’s trucks in Boston and surrounding territory; that the proceeds from the sale of the trucks and parts were to be paid to the plaintiff until such time as the past indebtedness of the plaintiff was liquidated and until such time as the plaintiff realized and profited on the good will of the business which had been established by the plaintiff at great expense.”</p> <p>In the Superior Court the action was tried before Fox, J. Material evidence is described in the opinion. At the close of the evidence, the judge denied a motion of the defendant that a verdict be ordered in its favor, ordered a verdict for the plaintiff in the sum of $1 and reported.“all the testimony offered and admitted at the trial, the testimony offered and excluded by me, showing the exceptions taken therein, for such disposition by this court as justice shall require.”</p>

<p>Bills and Notes, Holder in due course, Indorsement. Practice, Civil, Findings by trial judge, Exceptions, Requests for findings.</p> <p>Where an action at law was heard by a judge without a jury and the judge finds generally for the plaintiff, such finding is conclusive if there was any evidence to support it.</p> <p>A judge hearing an action at law without a jury is not bound to act upon requests for specific findings of fact.</p> <p>The facts, that, upon the indorsement and delivery by the payee of a negotiable promissory note, the indorsee, on an order in writing by the payee directing him "to pay the proceeds of the discounting or purchase” to a third person, with the consent of such third person charges the amount thereof to the third person’s credit in an account between the indorsee and the third person wherein the balance was in the indorsee’s favor, constitute a consideration for the indorsement.</p> <p>The fact, that an indorsee of a negotiable promissory note took title to the note with-knowledge that it was given as a part of a conditional sale of a motor truck containing certain covenants, warranties and guaranties to be performed by the payee and indorser of the note, does not prevent the indorsee from being a holder in due course under G. L. c. 107, § 80, where it does not appear that at the time when he received the notes as indorsee he had notice or knowledge of a breach of any of such covenants, warranties or guaranties.</p>

<p>Contract upon a policy of insurance against loss by burglary. Writ dated March 16, 1916.</p> <p>In the Superior Court, the action was tried before Sisk, J. Material evidence is described in the opinion. At the close of the evidence, the judge excluded certain evidence relating to one “A. Blake,” which had been admitted de bene and which is described in the opinion, ordered a verdict for the defendant and reported the action for determination by this court with the stipulation of the parties that, if the verdict properly was ordered, it should stand, but if thp action should have been submitted to the jury, then the verdict was to be set aside and judgment entered for the plaintiff in the sum of $1,185 and interest.</p>

<p>Attorney at Law, Champerty. Bankruptcy. Contract, Validity. Equity Jurisdiction, Conveyance in fraud of creditors. Evidence, Remoteness, Relevancy and materiality. Equity Pleading and Practice, Findings by master, Suits heard together, Amendment of bill.</p> <p>An attorney at law, who was a creditor of one who had been adjudicated a bankrupt, became the attorney for the trustee in bankruptcy and procured an-order by the referee in bankruptcy granting a petition by the trustee for leave to prosecute suits in equity against daughters of the bankrupt to compel conveyances to the trustee of real estate alleged to have been conveyed to the daughters without consideration and with the intent to hinder, delay and defraud the bankrupt’s creditors, the order of the referee stipulating that the attorney should file a bond with the trustee saving him harmless from the cost of the suits and that the attorney should receive no compensation for his services if no assets were recovered. Held, that the agreement was not champertous and was valid.</p> <p>Upon appeals by the defendants from final decrees for the plaintiff in three suits in equity by a trustee in bankruptcy against daughters of the bankrupt to compel a conveyance to the plaintiff of real estate alleged to have been conveyed to the defendants without consideration and with an intent to hinder, delay and defraud the bankrupt’s creditors, it appeared that the suits were heard together by a master, and that the evidence was reported; and it was held, that</p> <p>(1) The master was warranted by the evidence in finding that, from 1881 to 1912, when he was adjudicated a bankrupt, the bankrupt was insolvent, and that, in accordance with a general plan or scheme deliberately formed and continuously practised by him during that period, to keep his property concealed in the name of his daughters and other relatives with the intent of defrauding his creditors and preventing them from reaching it, the conveyances in question were made without consideration and with the knowledge of the respective defendants;</p> <p>(2) Evidence tending to show that conveyances of the property described in one of the suits were made by the bankrupt in accordance with the general scheme above described in 1881 was not so remote as to be inadmissible;</p> <p>(3) It was not necessary, in order that the conveyances to the defendants should be declared invalid, that it be shown that the grantees participated in the bankrupt’s fraudulent intent, they having received the conveyances without consideration;</p> <p>(4) The conveyances, having been made or procured to be made by the bankrupt to defraud his creditors, were voidable although free from moral turpitude;</p> <p>(5) The three suits having been heard together, findings by the master in his report in one of the suits, which bore upon the general scheme of the bankrupt to defraud his creditors, above described, were competent to be considered so far as pertinent in the other two suits.</p> <p>It is no valid objection to the allowance, by a judge in the exercise of his discretion, of a motion to amend the bills in equity above described so as to require the defendants to account for rents and profits received by them from the property in question, that the schedules of the bankrupt showed liabilities much less than the amount of his assets as shown by the original reports of the master, so that the real estate described in the bills and found to have been conveyed in fraud of creditors appeared to be sufficient to liquidate the liabilities, as it could not be assumed that the debts might not eventually be proved to be far in excess of the amount shown in the schedules.</p> <p>A report by a master of evidence by question and answer is a compliance with the requirements of a rule directing him to report the evidence or so much of it as either party might request.</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 and rulings of a single member of the board to whom had been referred a claim of Elizabeth A. Murphy, aunt of Joseph J. Stafford, whose life was lost while he was in the employ of E. S. Booth and Company, and dismissing the claim.

<p>Contract, Validity. Restraint of Trade.</p> <p>A corporation engaged in the business of selling petroleum products at wholesale and maintaining a station in a city in this Commonwealth with tanks in which was stored gasoline, purchased by it outside of the Commonwealth and brought here by interstate commerce, and from which delivery was made to its customers in its tank wagons, made a contract in writing with the proprietor of a garage in a nearby town in the Commonwealth whereby it delivered to him a gasoline pump of a certain agreed value to be used in the sale of gasoline furnished by the corporation, the garage proprietor agreeing “ to purchase for cash all our gasoline and to accept as part of this contract the following conditions,” among which were conditions “not to use said equipment for any other purpose than the one specified, nor use it in connection with any merchandise not furnished by the” corporation, and that, immediately “upon any infringement” by him “ of any of the provisions of” the contract, the corporation might remove the pump or, at its option, bill it at the agreed value to the garage proprietor “ and said charge shall become due forthwith.” Held, that</p> <p>(1) The transaction was not in interstate commerce, and 38 U. S. Sts. at Large, 719, § 5; 731, § 3, did not apply;</p> <p>(2) The contract did not impose upon competition an unreasonable restraint tending to the prejudice of the public;</p> <p>(3) The contract was not invalid.</p>

<p>Equity Jurisdiction, Multiplicity of parties.</p> <p>Equity has no jurisdiction of a suit for a breach of a contract merely because the breach relied on by the plaintiff was by a voluntary association whose members “are too numerous for all to be named parties to the present suit.”</p>

<p>Bill in equity, under R. L. c. 141, § 10, filed in the Supreme Judicial Court on August 20, 1917.</p> <p>The suit was referred to a master. Material findings of the master are described in the opinion. “On the facts found by the master,” Carroll, J., who heard the suit on the pleadings and the master’s report, was “of opinion that the creditor was not chargeable-with culpable negligence, and justice and equity require that judgment should be entered for the petitioner in the sum of $3,039.16 with interest from January 14, 1916;” and by his order a final decree was entered accordingly. The defendant appealed.</p>

<p>Bills and Notes, Validity. Mortgage, Of personal .property. Husband and Wife. Equity Pleading and Practice, Decree. Evidence, Competency.</p> <p>A note and mortgage of personal property, given by a husband to his mother without consideration and for the purpose and with the intention of preventing his wife from reaching his property in any proceeding brought by her against him to secure her marital rights to support and maintenance, is void as against his wife.</p> <p>A suit in equity by a woman as the administratrix of the estate of her husband against his mother to determine the validity of a promissory note and of a chattel mortgage, alleged to have been given by the intestate to the defendant, and the amount due thereon, was referred to a master, who found without reporting the evidence that at the time the note and mortgage were made the plaintiff and her husband were estranged from each other, that the note never was delivered to the defendant, that both instruments were given to the defendant “for the purpose of preventing himself from being harassed in business, so far as possible, by any hostile legal action that might be taken for, or on behalf of, his wife,” that, on the date of the note and mortgage, the intestate was indebted to the defendant in the amount of $103 only and “that there was no other consideration" for the instruments. A decree was entered in the Superior Court ordering a discharge of the mortgage upon payment of $103 and interest. The defendant appealed. Held, that</p> <p>(1) The rational inference from the finding was that the giving of the mortgage was merely colorable and that it never was intended by the parties to vest in the defendant any rights thereunder;</p> <p>(2) Although a decree should have been entered cancelling the mortgage, the defendant was not aggrieved by the decree entered, and, inasmuch as there was no prayer in the bill seeking such relief and the plaintiff did not appeal from the final decree, the decree should be affirmed.</p> <p>In the above described suit certain evidence consisting of book accounts, check books and the slips kept by the intestate in accordance with a “McCaskey System,” so called, was held properly to have been admitted for the purpose of showing the intestate’s business and financial condition.</p> <p>In the above described suit the admission of certain fire insurance policies covering the property described in the mortgage, which were found in the intestate’s u safe deposit box and were not made payable to the defendant as mortgagee in case of loss, was held not to have been erroneous.</p> <p>In the above described suit the master permitted the plaintiff’s daughter, who was employed by the deceased as a bookkeeper, to explain the “McCaskey System ” used by the deceased. Held, that the evidence properly was admitted.</p>

Contract with a declaration in eleven counts, counts numbered one to ten inclusive being for premiums alleged to be due according to the provisions of contracts under which the plaintiff acted as surety on bonds given by the defendant to different obligees for the faithful performance of construction contracts, and the last count being upon an account annexed which included items as to all such premiums. Writ dated November 20, 1915.

<p>Contract upon an account annexed for $1,050, the amount of a commission alleged to be due a real estate broker for procuring a tenant for a portion of a building at 1126 Boylston Street in Boston. Writ in the Municipal Court of the City of Boston dated November 27, 1916.</p>

<p>Conflict of Laws. Negligence, Railroad, Grade crossing. Practice, Civil, Report, Stipulation, New trial.</p> <p>In an action to recover for personal injuries received in a collision of a team and a railroad train at a grade crossing of a highway and a railroad in New Hampshire, the rights of the parties are to be determined by the law of that State.</p> <p>In an action against a railroad corporation for personal injuries received in a collision with a railroad train at a grade crossing of a railroad and a highway in New Hampshire at about eight o’clock on a dark night in September, there was evidence that the plaintiff was being driven as a guest to a station of the defendant in an open wagon having a dash light, that, when eight or ten feet from the grade crossing, the plaintiff first saw the headlight of the engine which was then seventy-five to one hundred feet away, that the plaintiff said to the driver, “Why, is that our train?” and that he then hit the horse with a whip and "in one instant” the wagon was struck by the engine. The only evidence of the speed of the train in approaching the crossing was testimony of the engineer, that it was about twenty-five miles an hour before reaching the crossing and at the crossing the speed was about six or seven miles an hour; and it appeared that the crossing was unprotected by gates, flagman or signal device, that the railroad track was in full view of the highway for over three hundred feet west of the crossing, from which direction the plaintiff was approaching, that the crossing was in a small village of about one hundred inhabitants, that there were but six trains a day in both directions over the crossing and an average of ten passengers a day from the station, and that four fifths of the travel on the highway over the crossing was to and from the station. The jury found that signals, required by statutes of New Hampshire, were given. Held, that</p> <p>(1) There was no evidence that the speed of the train at the crossing was excessive or unreasonable;</p> <p>(2) It not appearing that the engineer or the fireman knew that the plaintiff or the driver of the team was suffering from any physical or mental disability or infirmity, they properly could assume that their signals would be regarded and that the team would be stopped and that no attempt would be made to cross the tracks until the train had passed;</p> <p>(3) The law does not impose upon an engineer, who has given signals required by statute, the duty to stop or slacken the speed of his train upon seeing a traveller upon the highway approaching a grade crossing: he may properly assume that the traveller will not in the circumstances attempt to cross the track;</p> <p>(4) There was no evidence of negligence of either the engineer or fireman.</p> <p>In the above described action it was held that the judge rightly instructed the jury that the failure of the defendant to provide a crossing tender, or to maintain gates, a flagman or electric bells, or other warning signals at the crossing, was not negligence on its part and that there was no evidence that the defendant had failed to maintain adequate braking facilities for the train.</p> <p>The jury at the trial above described returned a verdict for the plaintiff and to special questions propounded by the judge answered (1) that the engineer and fireman gave signals practically as required by statute, (2) that in the exercise of reasonable care the engineer and fireman should have seen the team in time to avoid the accident by slackening the speed of the train or stopping it and (3) that there was no negligence of the plaintiff which contributed to her injury. It was stipulated in a report of the case by the judge to this court that, “If the evidence did warrant the submission of the case to the jury, and if as matter of law the answers to the special questions are inconsistent with the verdict or with one another, there is to be a new trial.” Held, that</p> <p>(1) The jury having found that the signals were given, there was no evidence which would have warranted a finding of negligence of the defendant and the jury should have been so instructed;</p> <p>(2) The evidence required the submission to the jury of the first question, whether the statutory signals were given;</p> <p>(3) That question having been answered in the affirmative and there being no evidence of negligence of the defendant, it followed as matter of law that the answer was inconsistent with the verdict;</p> <p>(4) In accordance with the terms of the report a new trial must be granted.</p>

<p>Bill in equity, filed in the Superior Court on August 20, 1919, for the specific performance of an agreement to convey real estate. The defendants were Eghia Donabedian, Mary Arghunian as administratrix of the estate of Hatchadour Arghunian, and Salem G. Alexander.</p>

<p>Two bills in equity, filed in the Supreme Judicial Court on March 3, 1920, for the specific performance of an alleged agreement to purchase real estate. The bill in the first suit alleged an oral agreement reduced to writing in a memorandum consisting of letters dated respectively January 20, 27 and 29 and February 6, 1920, and which read as follows:</p> <p>“E. Sohier Welch, Esq., Dear Sir: — I have been able to convince a client of mine to offer ($400,000), Four hundred thousand dollars, for your property No. 100 Kingston St., N. E. corner of Essex, and as soon and at your favorable advice, I will be pleased to cause a substantial deposit to be made on an agreement. This offer is for an amount that is about 140% above assessed valuation of property, and hope it will engage your favorable attention. Yours very truly,</p> <p>S. H. Wachsman.” .</p> <p>“S. H. Wachsman, Esq., 15 Court Square. Dear Sir: — The owners of the estate cor. Kingston and Essex Sts. have considered offer of $400,000 cash for the property. As you are not known to them they feel that a substantial deposit should be put up by your client as evidence of good faith the same to be returned if the sale is not consummated. I would suggest $2,000 as a proper sum unless you care to disclose the name of your principal and the trustees consider him as a responsible person. Yours truly,</p> <p>E. Sohier Welch.”</p> <p>“Mr. S. H. Wachsman, 15 Court Sq., Boston, Mass. Dear Sir: — I authorize you to give $2,000 of your money to Mr. E. Sohier Welch, trustee, in accordance with his written request of January 27th, 1920, as a deposit on property at 100 Kingston Street, Cor. Essex Street. Yours truly, S. Rosenberg.”</p> <p>“S. H. Wachsman, Esq., 15 Court Sq., Office 58, Boston, Mass. Dear Sir: — In behalf of the Trustees under the will of Sarah E. Lawrence, I hereby accept your offer of January 20, 1920, to purchase for $400,000 the property 100 Kingston St., northeast corner of Essex St., payment to be made in cash, agreement of sale to be signed on or before February 9, 1920, with a deposit of $10,000 by purchaser. Said premises are to be conveyed on or before March 10th, 1920, by a good and sufficient Trustees’ deed conveying good and clear title free from all encumbrances, except passageway rights, party wall agreements and restrictions of record, and lease to Blodgett, Ordway & Webber, expiring January 1, 1923 and taxes. It is understood that a broker’s commission, according to the rules of the Boston Real Estate Exchange, is to be paid to you in the event that this sale is completed, but not otherwise. Very truly yours, E. Sohier Welch.”</p> <p>The bill in the second suit alleged an agreement in writing consisting of the letters above set forth. The defendant demurred to the bill in each suit, assigning the following causes of demurrer:</p> <p>“ 1. That the plaintiffs have not stated in their bill of complaint. such a cause as entitles them to any relief in equity against the defendant.</p> <p>“2. That it appears from a consideration of the bill that the allegations therein and the facts therein set forth do not show that any contract was ever made by and between the plaintiffs and the defendant.</p> <p>“3. That the allegations in the bill and the facts therein set forth show that the suit is based upon a contract for the sale of land, and that there is no memorandum or note thereof in writing and signed by the defendant or by any person thereunto by him duly authorized, according to the provisions of R. L. c. 74.”</p> <p>The suits were heard upon the bills and the demurrers * by Jenney, J., who made an interlocutory order in each case that the demurrer be sustained with the right to amend the bill within ten days, and later by his order, the bills not having been so amended, a final decree was entered in each case dismissing the bill with costs. The plaintiffs appealed.</p>

<p>Evidence, Relevancy and materiality.</p> <p>At the trial of an action for the purchase price of certain sheet metal, there was evidence tending to show that the defendant, a principal building contractor, had contracted with a subcontractor for the installation of the sheet metal required in certain building operations, that the subcontractor had sought to purchase the metal of the plaintiff, that the plaintiff had refused to sell it upon the subcontractor’s credit, and that, after negotiations with the' defendant, the plaintiff and the defendant had agreed that the goods should be billed and shipped to the defendant, which was done. The defendant denied his liability and offered evidence of the total amount which he had paid to the subcontractor for work performed and materials furnished on the building in question, that the portion of the full amount which would be due to the subcontractor from the defendant was paid by the defendant, and the amount of work required under the contract between the defendant and the subcontractor which was completed by the subcontractor. The evidence was excluded. Held, that the evidence was immaterial and irrelevant and that its exclusion was not error.</p>

<p>Landlord and Tenant. Negligence, Of one owning or controlling real estate. Practice, Civil, Conduct of trial: order of evidence. Evidence, In rebuttal.</p> <p>A trial judge in bis discretion may exclude evidence, offered in rebuttal, which should have been offered or introduced in chief.</p> <p>St. 1907, c. 550, § 127, does not in express terms attempt to modify or to affect in any way the relations between landlord and tenant as they exist at common law.</p> <p>Spec. St. 1915, c. 352, § 4, does not apply to a tenement house containing ten apartments and a store, with three floors and a roof which tenants use for the drying of clothes.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Presumptions and burden of proof.</p> <p>If, at the trial of an action of tort by a woman against a street railway company for personal injuries received by the plaintiff when a passenger, the plaintiff testified that, when she was seated in a car of the defendant which was “going fast,” she “heard a crash and the car gave a bang and” she fell to the floor, and other evidence tended merely to show that there had been a collision between the street car and a motor truck in front of it at intersecting streets, the doctrine of res ipso loquitur does not apply and a verdict for the plaintiff would not be warranted.</p>

<p>Marriage and Divorce. Husband and Wife. Evidence, Private conversations of husband and wife, Relevancy and materiality, Presumptions and burden of proof. Witness, Cross-examination. Practice, Civil, Findings of fact by judge, Exceptions.</p> <p>In a libel by a wife for a divorce, the libellant specified that cruel and abusive treatment, alleged as the ground for the divorce, consisted of the “ imposition upon” her "body by the libellee of blows and the exercise upon her person of physical force” occurring "several times between” January 1 "and on or about July 31, 1919.” At the hearing of the libel, there was evidence warranting findings that, when the libellant was in ill health, the libellee frequently had assaulted her and during some of the assaults had indulged in foul, abusive and profane language, that on July 31, 1919, in the presence of her- daughters and of her sister and brother-in-law, he assaulted and accused her of being an immoral, diseased woman and a liar, causing her to suffer in health, and to be confined in bed during the following day. Held, that a finding by the judge that the libellee inflicted upon the libellant cruel and abusive treatment within the meaning of R. L. c. 152,' § 1, of the nature and character and at the times specified by her, as above described, and an order for a decree nisi “on the ground of cruel and abusive treatment as found by me,” were warranted and were conclusive.</p> <p>At the hearing of a libel for divorce, sought by a woman on the ground of alleged cruel and abusive treatment of her by her husband, the answer contained allegations that the libellee’s conduct had " been in all instances fully justified by facts or information in his possession, and by his motive and purpose at the time,” that the libellant had been guilty of cruel and abusive treatment of the libellee, and had been guilty of adultery. The judge, subject to exceptions by the libellee, refused requests of the libellee for rulings that there was no evidence to warrant a finding that any of the acts of the libellee were done with an intent or purpose to injure the libellant or with a malevolent motive toward her or that “ upon the undisputed evidence the libellant’s own conduct was such as to prevent her from obtaining a divorce” on the ground alleged, found that the allegations of the answer were not sustained, that the libellant always had been faithful to her marriage vows, and that she was entitled to a divorce. Held, that the findings of fact were conclusive and that the exceptions to the refusal of the rulings must be overruled.</p> <p>A libellant specified that cruel and abusive treatment of her by the libellee, alleged as the ground for the divorce, consisted among other things in the libellee forbidding her to call upon friends except in his company, to shake hands with men acquaintances or men whom the libellee brought to the house, to meet salesmen at stores or to go to the theatre or to call a physician without his approval or consent. At the hearing, the libellant testified that she refrained from engaging in certain social affairs and from associating with certain persons and with neighbors, and, subject to exceptions by the libellee, was permitted further to testify that she did so in consequence of conversations with her husband. Held, that the admission of the testimony was not in violation of G. L. c. 233, § 20, cl. 1, and that the exceptions must be overruled.</p> <p>Where, at the trial of a libel for divorce, a conversation between the husband and wife in the presence of a nine year old child of the parties is offered in evidence, it is for the judge to determine whether the child was of sufficient intelligence at the time of the conversation to pay attention and to understand what was being said so that the conversation was not private within the provisions of G.-sL. c. 233, § 20, cl. 1; and an exception to a ruling by the judge admitting the testimony must be overruled.</p> <p>At the hearing of a libel for divorce, a conversation between the husband and wife in a public street, where it does not appear that any passer-by or person in their vicinity paid any attention to them or even could hear their words, is inadmissible under G. L. c. 233, § 20, cl. 1.</p> <p>A libellant specified that cruel and abusive treatment of her by the libellee, alleged as the ground for divorce, consisted among other things in his forbidding her " to call a doctor without his approval or consent.” At the hearing, subject to an exception by the libellee, the libellant, who had testified that the libellee made appointments for her to go to a certain dentist and had identified one of her dentist’s appointment cards which, she testified, to the best of her recollection the libellee had seen, was permitted to introduce the card in evidence, subject to an exception by the libellee. From the card, it appeared that appointments were made with the dentist for the libellant and the libellee together. Held, that the exception must be overruled, as it did not appear that the judge had exceeded his discretionary power.</p> <p>Restatement, by Braley, J., of the general rules applying to determination of the scope of cross-examination of an adverse party at the hearing of a libel for divorce.</p> <p>Where a libellee, in his answer to a libel by his wife for a divorce, has charged her with adultery and has averred that his actions toward her, and statements and accusations by him, whether oral or in writing, concerning her character and marital conduct, were all supported by facts or information in his possession, and has offered evidence which he contended tended to substantiate such facts and information, the libellant properly may be allowed to elicit from him in cross-examination evidence tending to show that he was not acting in good faith, that he knew from a prolonged investigation by detectives employed by him to shadow his wife that no improper relations existed between her and other men, and not only that the charges of adultery or even of an adulterous disposition were groundless, but also that he knew they were groundless.</p> <p>At the trial of the libel above described, the libellee, after recounting an interview between his wife, himself, and a physician, who had since died, in the physician’s office, relating to what he then said were improper relations between the physician and the libellant, offered further to show that, at a conversation with the physician the next day, the physician had told him that the libellant had been to him at least once a week “for the last several months” and also that the physician had "said he did not know why she was” at his office the night before and that he “ was surprised to see her.” The evidence was admitted for the limited purpose of showing “information which came to the knowledge of the libellee” when seeking to ascertain the alleged unchastity of the libellant. The libellee excepted to such' a limitation in its use. Held, that the ruling was sufficiently favorable to the libellee, and that the exception must be overruled.</p> <p>At the hearing of the libel above described, and as bearing on issues there raised, it was held that a letter to the libellee from former counsel containing suggestions that if he could persuade his eldest daughter to "shift and stick by” him instead of her mother, it would “be a very desirable thing indeed,” and other letters written by and to him, relating to his own temperament and disposition and to his recommendation of the physician, whom he had accused of adulterous relations with his wife, for a responsible public employment, were admissible.</p> <p>At the hearing of the libel above described, the libellee introduced evidence tending to show that on a certain date the physician, with whom the libellant was alleged in the answer to have committed adultery, and who had died, was in another State in communication with her. A justice of the peace having testified that an application for registration of a motor vehicle, produced from the files of the office of the Massachusetts Highway Commission, was signed and sworn to before him in Framingham in this Commonwealth on the date named by the libellee’s evidence, the application was admitted in evidence. Held, that the application was admissible within the discretion of the judge.</p> <p>At the hearing of the libel above described, it was held, that, because they were matters within the discretion of the judge, exceptions of the libellee must be overruled to rulings of the judge</p> <p>(1) Refusing, after the' libellant had admitted in cross-examination that on several occasions, with intent to deceive, she had made untrue statements to her husband, to permit her to be further asked, whether “a woman who deceives her husband will hesitate to deceive a judge,” and "which do you think the more reprehensible —■ to deceive your husband "or to deceive the court; ”</p> <p>(2) Excluding, when a daughter of the parties had been shown an exhibit, and had testified that the handwriting of some of the words looked familiar, a further question, “Do you think you have ever seen the handwriting before?” and the answer, “As X have said, some of the words look familiar and others do not; ”</p> <p>(3) Refusing to permit counsel for the libellee, in cross-examination of a sister of the libellant, to use a letter which had been marked for identification but which had not been admitted in evidence.</p> <p>At the hearing of the libel above described, a letter of the libellant to the libellee was introduced in evidence by the libellee, in which the libellant had said “ Even if things have not been as smooth as we would like to have had them I would rather a blankety blank with you than a paradise with anyone else — and I am not sure but what the little rough places have made the bright, happy times even brighter and happier — eh? ”; and it was held that she properly was permitted to explain that she there referred “to all the cruel and abusive times, to the times when he was abusive in language as well as the times when he was abusive by force, physical force.”</p> <p>At the hearing of the libel above described, and under specifications setting forth that cruel and abusive treatment of her by the libellee consisted, among other things, in his requiring “her, when pregnant, to tend the furnace and to perform other menial and manual work,” and after testimony and letters of the libellant had showed that she was harassed, when pregnant, by insistence by the libellee that she keep accurate accounts of household expenses, the judge, subject to an exception by the libellee, permitted the libellant to introduce in evidence books of account of household expenditures during a period of fourteen years which ended in 1917. The judge found that the libellee had inflicted upon the libellant cruel and abusive treatment within the meaning of R. L. c. 152, § 1, by physical violence in the year 1919, which was a finding based on a specification other than that under which the books were offered. Held, that, while the books might well have been excluded, the libellee plainly was not harmed, and the exceptions must be overruled.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 23, 1920, and afterwards amended, by the lessee of premises numbered 1359-1367 on Washington Street in Boston, under a lease described in the opinion, against Francis Peabody, the lessor, and the Boston Penny Savings Bank, to whom the defendant Peabody had sold and conveyed the premises in alleged violation of the provisions of the lease.</p> <p>Allegations of the amended bill were, in substance, that for twelve years previous to the execution of the lease, the plaintiff had conducted a hardware business on the premises and had acquired a good will in connection therewith; that at and before the time the lease was entered into, the plaintiff represented to the defendant Peabody that he desired to make costly improvements by adding a new front to the building and an addition in the rear and by making extensive alterations to the interior, and further that he could not afford, under-the circumstances, to take a lease for only five years, unless it contained a provision that the lessor would not sell the premises during the term except to the plaintiff or unless the plaintiff had an opportunity to purchase, thereby reserving to the plaintiff an opportunity to negotiate with the defendant Peabody up to the last day of the lease for a purchase, or an extension of lease; that the defendant Peabody thereupon stated to the plaintiff that he would give the plaintiff by the lease the right to purchase the premises prior to any one else, that he would rather sell to the plaintiff than any one else on account of the plaintiff’s long occupation and because he knew him; that in consequence of that understanding, and with the intention of carrying it out, the provisions of the lease, described in the opinion, were introduced into the lease; that previous to November 4, 1920, the defendants entered into negotiations with one another for a sale of the premises and on that date an agreement in writing was made between the defendant Peabody and one Henry D.McKie for a sale to McKie for $30,000, the, “premises ... to be conveyed on or before December 1, 1920, or at a prior date if the party of the second part so desires, by good and sufficient quitclaim deed of the party of the first part conveying a good and clear title to the same, free from all encumbrances except present tenant who holds a lease which expires on January 1, 1921, and other tenants at will; ” that on November 5, 1920, the defendant Peabody notified the plaintiff in writing that he had “ entered into an agreement for sale of the premises, stating, Papers will probably be passed within a few days, the purchaser being the Boston Penny Savings Bank. Your lease expires on January 1,1921, and the conveyance will be subject to this lease. I notify you of the sale at the present time so that you may have the fullest possible notice of the change. All subsequent payments may be made direct to the Boston Penny Savings Bank;’” that on November 8, the defendant Peabody orally stated to the plaintiff that the purchase price to be paid by the defendant bank was $30,000; that on November 6 the defendant Peabody conveyed the premises to the defendant bank, it being expressly stated in the deed that “this conveyance is made subject to a lease to H. J. Levy, dated December 29, 1915, and expiring December 31, 1920;” that on November 11 the plaintiff notified both defendants that he had learned of the sale and conveyance to the defendant bank and that he was willing to pay $30,001, for the premises and to receive a conveyance for that price, which he then demanded, and that conveyance was refused.- The prayers of the bill were in substance that the defendants be ordered to convey the premises to the plaintiff “upon the plaintiff paying to the defendant bank $30,001, with the further sum of $1 to the defendant Peabody.”</p> <p>The defendants severally demurred. The demurrers were heard by Jenney, J., by whose order there were entered interlocutory decrees sustaining the demurrers and a final decree dismissing the bill. The plaintiff appealed.</p>

Contract by the widow of Isaac Archibald, a member of the defendant fraternal beneficiary company, for a death benefit. Writ dated May 9, 1919.

<p>Bill in equity, begun by a writ in trustee process dated July 9,1918, for specific performance of certain covenants in a sublease by the plaintiff to the defendant, described in the opinion, and for damages.</p> <p>The suit was referred to and heard by two successive masters, in circumstances described, in the opinion. It was alleged in the bill, admitted in the answer and found by the second master that the plaintiff, in his lease from the owners of the property, covenanted in substance that he would entirely equip the theatre, including therein all carpets, asbestos fire curtain, draperies, scenery, properties, and office furniture, and all other articles and things needed completely to furnish it in a first class manner, all such articles to become the property of the owners as soon as they were placed in the theatre, and part of the property thereby demised, but that the plaintiff should have the right to make from time to time such changes in the equipment and furnishings as he should see fit, by additions, substitutions or otherwise, provided the theatre was at all times kept fully furnished and equipped in a first class manner; that the theatre should be constructed, finished and equipped in a first class manner throughout, and in accordance with the best usage and custom of the day relating thereto; that, when the theatre had been furnished, a duplicate inventory should be made of its equipment and furnishings, one copy of which should be given to the owners, and the other copy retained by the plaintiff, and that from time to time if the plaintiff should make changes in the furnishings, a complete list of the articles substituted should be furnished the owners; that at the expiration of the lease he would peaceably yield up to the owners the premises and all erections and additions made to or upon the same, and all equipment and furnishings, in good repair and condition in all respects, reasonable use and Wear and damage by fire and other unavoidable casualties excepted.</p> <p>It likewise was alleged in the bill, admitted in the answer and found by the second master that the sublease of the plaintiff to the defendant, besides containing the covenants described in the opinion, specifically stated that it was subject to the lease of the owners to the plaintiff. The second master moreover found that at the time of the- commencement of the occupation by the defendant under the lease from the plaintiff to the defendant, January 1, 1913, the theatre building was practically new and newly furnished, fitted and equipped, having been used only twenty-six weeks.</p>

<p>Negligence, Of one controlling real estate. Snow and Ice. Way, Public. Agency, Scope of authority. Evidence, Admissions, Competency.</p> <p>One in control of a building abutting on a public highway in a city, who had not removed from the highway broken glass and ice deposited or accumulated there by reason of acts of the fire department of the city while fighting a fire on the premises on a Sunday night in February, and who had not warned travellers of the danger of using the way, is not liable for personal injuries caused at two o’clock in the afternoon of the day after the fire to a traveller upon the highway who slipped upon the glass or ice.</p> <p>The mere fact, that, after the traveller on the highway slipped as above described, an employee of the person in control of the premises swept the glass and ice from the sidewalk, has no tendency to prove any wrongful act or omission of his employer nor does it amount to an admission of liability on the employer’s part.</p>

<p>Tort for personal injuries received when the plaintiff fell as she was alighting from a street car of the defendant at the Scol-Iay Square station in the subway in Boston. Writ dated March 27, 1918.</p> <p>In the Superior Court, the action was tried before Irwin, J. Material evidence is described in the opinion. At the close of the evidence, by order of the judge, a verdict was entered for the defendant; and the plaintiff alleged exceptions.</p>

<p>Two actions of contract for breaches of contracts relating to insurance, the declaration in each action containing three counts, the first count containing, besides allegations as to the loss of the insured property and the performance of conditions precedent to recovery, allegations that on or about July 18, 1918, the parties “entered into a contract by which the defendant agreed to insure certain bags ” for one year and that the defendant failed to insure in accordance with its contract; the corresponding allegations of the second count being that on or about that date the parties “entered into a contract by which the defendant agreed to issue to the plaintiff without delay a policy” to be for the term of one year “ and to keep said bags insured ... in the interval prior to the issuance of said policy; ”and those of the third count being that the parties “entered into a contract by which the defendant insured the plaintiff for the term of one year.” Writs dated December 20, 1918.</p> <p>The actions were tried together before Sisk, J. Material evidence is described in the opinion. At the close of the evidence, the judge ordered the jury to return verdicts for both defendants and by agreement of counsel reported both cases to this court “for determination, with the stipulation that if my order directing the verdicts was error, judgment shall be ordered for the plaintiff for the amounts indicated and agreed upon; otherwise, judgment to be ordered for the defendants.”</p> <p>The report stated: “The pleadings and admission of facts, [filed in response to motions under Rule 38 of the Superior Court (1915)] which were offered by the plaintiff and read at the trial, are not set forth herein but may be referred to and considered as a part of this report.”</p>

<p>Negligence, Of one owning or controlling real estate.</p> <p>If the owner of a five-story building with tenants upon every floor retains control of a janitor’s room on the second floor and of common halls, passenger and freight elevators and has a janitor upon the premises substantially all the time, he is liable to a traveller upon an adjacent highway for personal injuries caused by his being struck by a large sign, which the owner had permitted the tenant of the third floor to place on the wall outside the floor let to him and extending in part upon the wall outside of the janitor’s room below and of the well of the freight elevator, and which fell by reason of the fastenings having become defective.</p> <p>Evidence tending to show that the sign above described had been placed on the building in 1898 and- was supported by irons, that nothing had been done to it or its supporting irons since that time, and that, to maintain the sign safely, it was necessary to paint the irons at intervals of one or two years and to renew them every five or six years, will warrant a finding that the sign, which fell in 1912, did so by reason of negligence of the defendant in allowing its fastenings to become defective.</p>

<p>Deed, Delivery, Recording. Evidence, Presumptions and burden of proof, Of delivery of deed, Declaration of deceased person. Land Court, Findings by judge, Exceptions. Practice, Civil, Exceptions.</p> <p>Findings by a judge of the Land Court upon the hearing of a petition for the registration of the title to certain land, that a certain deed of the land, dated and acknowledged in 1908 and recorded in 1912, upon a delivery of which the petitioner relied for his 'title, was not delivered in 1908 and “was not delivered as a present conveyance of title in 1912,” are findings of fact and not rulings of law; and, if the judge makes rulings and findings as to other necessary elements of the petitioner’s claim of title in accordance with his contention and orders the petition dismissed, he must be held to have found that the deed in question never was delivered; and, upon a record setting forth such findings and rulings, his findings must be held to be conclusive.</p> <p>The mere facts, that, in 1915, a son gave to his father a deed conveying certain land to him for life and that the father accepted the deed, are not as a matter of law conclusive evidence as between the parties to that deed that a deed of the land to the son, dated and acknowledged in 1908 and recorded in 1912, was delivered by the father to the son on a date which would make the later deed a valid conveyance.</p> <p>At the hearing of a petition in the Land Court involving the question of the delivery of the deed dated and acknowledged in 1908 and recorded in 1912, above described, where there was other evidence upon that question besides the 1915 deed, the judge may refuse a request for a ruling that the 1915 deed was prima fade evidence of the delivery of the earlier deed at a date that would make the 1915 deed valid, whether the ruling requested was taken to mean that the 1915 deed was such evidence as would justify a finding of such delivery and acceptance of the earlier deed, or to mean that it was such evidence as, in the absence of other evidence, required a finding of such delivery and acceptance of the earlier deed.</p> <p>An exception to the admission, by a judge of the Land Court hearing a petition for a registration of title, of evidence of a declaration of a deceased person without first making a specific finding of the facts, necessary to the admissibility of the evidence under G. L. c. 233, § 65, that the declaration was made in good faith on the part of the declarant and of his own personal knowledge, will not be sustained where the record does not show that the judge did not make such preliminary finding or that such a finding could not have been made on the evidence, the fact of such a finding being inferable from the admission of evidence.</p>

<p>Negligence, Employer’s liability, In use of carbonator, Res ipso loquitur. Evi* deuce, Matter of common knowledge, Presumptions and burden of proof.</p> <p>At the trial of an action at common law by an employee against his employer, the proprietor of a drug store, for personal injuries received when the plaintiff, left in charge of the defendant’s store, was attempting to charge a soda fountain with a carbonator and the carbonator exploded, it appeared that the carbonator was defective in that its pressure gouge was out of order and that, due to that fact, the plaintiff treated the carbonator as though it was nearly empty, when it was not, and the explosion resulted. It further appeared that the plaintiff knew the apparatus and had operated it before. There was no evidence that he was .ignorant of the work which he was to perform, of the method of performance or of the dangers incidental thereto. While it appeared that, on the day of the accident, the defendant had left the store in charge of the plaintiff and had said nothing as to the condition of the carbonator or the tank, there was no evidence that the defendant knew of any defect in the apparatus or that he had not warned or instructed the plaintiff as to its use. The apparatus was about eight years old. The defendant testified that he had been “ cautioned by the soda fountain people” not to shake the tank to mix the gas with the water while he was letting the gas into it. Held, that (1) Evidence, merely of the age of the apparatus, in the absence of evidence as to the effect of time and use, would not warrant a finding that the defendant was negligent;</p> <p>(2) The period that the apparatus could be used without repair and renewal was not a matter of common knowledge;</p> <p>(3) The doctrine, res ipso loquitur, did not apply;</p> <p>(4) A finding for the plaintiff was not warranted.</p>

<p>Practice, Civil, Report. Contract, Modification, Performance and breach.</p> <p>"Where, at the trial of an action of contract, a certain ruling was made at the request of the plaintiff and subject to an exception by the defendant, certain rulings asked for by the defendant were refused subject to exceptions by the defendant and, after answers by the jury to special questions submitted to them, a verdict was ordered for the plaintiff in accordance with the answers to the special questions and subject to an exception by the defendant and thereupon the judge reported the case to this court “by agreement of counsel, upon the stipulation that, if upon the law and facts and findings of the jury herein set forth the defendant is'entitled to a verdict, judgment shall be entered for the defendant, otherwise judgment for the plaintiff on the verdict,” no new trial can be ordered.</p> <p>If, at the trial of an action upon an agreement appearing in a memorandum of sale by the defendant to the plaintiff of fifty barrels of lime juice “ to be taken in five barrel lots on or before June 1,” evidence is offered by the plaintiff and admitted without objection or exception by the defendant that, after the plaintiff had taken all but thirty-five barrels in five barrel lots and on May 26 had demanded the remaining thirty-five barreti and the defendant had delivered five barrels on May 29, the defendant after June 1 promised to ship the balance of the order and on August 7 delivered one more barrel but thereafter made no further deliveries; and if, also without objection or exception by the defendant, a special question is submitted to the jury, “Did the parties prior to June 1 agree to extend time for delivery?” which the jury answered “Yes,” it clearly appears that the action was not tried with the rights of the parties restricted by the declaration; and, on a report of the case after the return of a verdict by order of the judge in accordance with other questions asked by the judge, no question of pleading is open.</p> <p>Upon the evidence and answer of the jury above described, a verdict could not be ordered for the defendant.</p> <p>A contract, evidenced by a letter confirming an order for the sale of fifty barrels of lime juice “ to be taken in five barrel lots on or before June 1,” may be modified by an oral agreement extending the time for delivery, entered into before June 1, after the seller had delivered fifteen barrels in five barrel lots, and, upon the plaintiff on May 26 demanding the remaining thirty-five barrels, had delivered five barrels more on May 29.</p>

<p>Contract, Construction, In writing. Evidence, Extrinsic affecting writings, Presumptions and burden of proof. Municipal Court of the City of Boston, Report. Practice, Civil, Report in Municipal Court of the City of Boston, Ordering judgment.</p> <p>A provision in a contract in writing, the parties to which were two real estate brokers and two persons who were exchanging real estate, reading, “It is hereby agreed and understood that [one of the parties exchanging real estate] is to pay to [the brokers] the sum of $100 as commission, and the said [the other party exchanging real estate] is to pay to the said [brokers] the sum of $50 as commission,” is an unconditional promise to pay to the brokers a definite amount without any contingency, and, no time being fixed for payment, the amount named was payable on demand.</p> <p>The bringing of an action by the brokers upon the contract above described constituted a demand.</p> <p>Where, at the time of a ruling by a judge of the Municipal Court of the City of Boston admitting certain evidence at the trial of an action at law, the plaintiff does not claim a right to a report to the Appellate Division under St. 1912, c. 649, § 8, he cannot gain a right to have the question of the admissibility of the evidence reviewed by filing a written claim of report within two days thereafter, and such later request for a report properly may be refused.</p> <p>The express terms of the contract in writing above described cannot be varied nor affected, at a trial of an action by the brokers upon the contract, by evidence of an antecedent oral agreement to the effect that the brokers should not be entitled to their commission unless the exchange of properties actually should come to pass.</p> <p>At the trial of the action above described, the original employment of the plaintiffs and the execution of the contract which was the basis of the action were not in issue. Held, that no question of fact was in issue and a request by the plaintiffs for a ruling, that on all the evidence they were entitled to a finding, should have been granted.</p>

<p> Intoxicating Liquors. Non-intoxicating Beverages. Municipal Corporations. </p> <p>The main purpose of G. L. c. 138, is the prohibition of the sale of intoxicating liquors as a beverage.</p> <p>The several sections of G. L. c. 138, are not so mutually dependent upon each other as to require the belief that they were intended to be an indivisible uqit; and therefore the valid parts can be separately enforced and, thus enforced, will effectuate the main purpose of the General Court and of the Eighteenth Amendment to the Federal Constitution.</p> <p>Although an affirmative vote upon the question, "Shall licenses be granted for the sale of certain non-intoxicating beverages in this town? ” which question the selectmen of each town are required to submit to the voters by G. L. c. 138, § 11, by inserting it in the warrant for the annual town meeting, would not authorize any sale of the “non-intoxicating beverages” defined in G. L. c. 138, § 1, by reason of the prohibitions contained in the Eighteenth Amendment to the Federal Constitution and of 41 U. S. Sts. at Large, 305, known as the Volstead act, a writ of mandamus directing the selectmen not to insert such an article in the warrant will not be issued where it does not appear that it is contemplated that, in case of an affirmative vote, action purporting to authorize such a sale will be taken.</p>

<p>Two actions of tort, the first as amended being against the Boston Consolidated Gas Company as the sole defendant, and the second against the Edison Electric Illuminating Company of Boston as the sole defendant, both being brought by the administratrix of the estate of Thomas A. Nugent, and the declarations in both being in two counts, the first count for conscious suffering and the second for the negligent causing of the death of the plaintiff’s intestate when a manhole of the electric company was blown off at the corner of IÍ Street and Broadway, in that part of Boston called South Boston, by reason of an explosion of gas escaping from a leak in a gas main at the corner of L Street and Third Street, it being alleged in the declaration in the first action that the gas which exploded “was allowed to escape through the negligence of the” gas company, “its agents or servants,” and in the declaration in the second action that the “gas pipes were cracked and the illuminating gas caused to escape through the •negligence of the” electric company, “its agents or servants, which had negligently installed and maintained a cement or concrete conduit, for the carrying of its ducts or wires, of large size and great weight at the corner of Third and L Streets in said South Boston in such a manner that it rested directly upon the said gas pipes and was above the frost line, so that the weight of said conduit and the action of the frost thereon and the vibration caused by passing wagons, automobiles and electric cars on the surface of the street caused the crack in said pipes, and the gas thus caused to escape seeped or percolated into the conduits and manholes maintained by the defendant in the vicinity of said IC, Third and L Streets and Broadway, was ignited and exploded.” Writs dated, respectively, May 23, 1917, and July 3, 1918.</p> <p>In the Superior Court, the actions were tried together before Fessenden, J. Material evidence is described in the opinion. The trial of the actions occupied more than five court weeks.</p> <p>The defendant gas company in its bill of exceptions stated that the evidence “warranted a submission of the case to the jury, both on the question of the due care of the plaintiff’s intestate and the negligence of the defendant.” It excepted only to a refusal of the judge to rule and instruct the jury that “if the jury find against both the Edison Electric Illuminating Company and the Boston Consolidated Gas Company on the counts in the plaintiff’s declarations for the death of the plaintiff’s intestate, the total amount awarded under these counts cannot exceed $10,000,” and to an instruction to the effect that the jury were not obliged to limit the amount, of their verdict in either case upon the count for causing death so that the aggregate of the verdicts in both cases upon those counts should be $10,000 and no more, the judge also stating, “If it strikes you that the culpability is greater as to one of the parties, and if the aggregate exceeds $10,000, the aggregate, you may so award. You cannot award more than $10,000 in each case; in any one case, you can't exceed $10,000.”</p> <p>The defendant in the second case moved that a verdict be ordered in its favor. The motion was denied. It then presented fifty-seven requests for rulings and instructions. Of these, the first four were to the effect that, if the electric company employed an independent contractor to do the entire work of constructing its conduits, any negligence predicated (1) “upon the” manner or method of construction,” or (2) “upon the situation, or location of such conduits,” or (3) “upon the fact that'the conduits were placed in close proximity to or in contact with pipes of the gas company” would be negligence of the independent contractor and not of the electric company; and that, if the position, situation or location in which the conduits were to be constructed was to be “approved by the wire commissioner of the city of Boston or as determined by the independent contractor, any negligence predicated upon the position, situation or location of such conduits as regards gas pipes cannot be negligence of the ” electric company.</p> <p>Requests numbered 5, 14 and 21 in substance asked for rulings to the effect that the electric company could not be held liable by reason of the fact that the situation about its conduits was made more dangerous, after they were constructed, by changes in the weight of paving, the installation of street railway tracks and street railway traffic.</p> <p>Requests numbered 6-10, 18-20, 35, and 44-48 in substance sought rulings imposing liability upon the gas company by reason of negligence on its part; those numbered 15, 16 and 27 sought rulings to the effect that the gas company was liable and the electric company was not; and those numbered 37-43, 49-51, and 57, were to the effect that on the evidence the gas company was a trespasser, unlawfully maintaining pipes under the highway at the place of the leakage, requests numbered 42 and 43 asking for rulings to the effect that such conduct on the part of the gas company made it solely liable.</p> <p>Request numbered 17 was for a ruling that there “was no duty imposed upon the defendant Edison Electric Illuminating Company, upon the report of any leak of gas in the streets in question, to dig down into the streets or take other action to discover any reported leak of gas even if eventually it should turn out that the leaking of gas was caused by a breaking of a gas pipe by some negligent act of the defendant Edison Electric Illuminating 'Company.”</p> <p>Requests numbered 11-13 and 36 were for rulings to the effect that the electric company was under obligation only to see that its conduits were constructed in accordance with permission given by public authorities, and that it had no right in the highway except such as was so given.</p> <p>Request numbered 23 was for a ruling, “The party who has the last opportunity of avoiding an accident is not excused by the negligence of any one else. His negligence and not that of the one first in fault is the proximate cause of the injury;” and those numbered 24-26 were for rulings to the effect that, if the gas company “had the last opportunity of preventing the explosion which actually occurred in the cases at bar and was negligent when given such last opportunity in not preventing the explosion,” its negligence and not negligence of the électric company was the proximate cause of the injury to the plaintiff’s intestate.</p> <p>Requests numbered 52-56 related to the bearing of particular phases of the evidence upon the question of the liability of the electric company.</p> <p>Requests numbered 28-34 were as follows:</p> <p>“28. If the jury find that both defendants are liable, their verdicts for conscious suffering, if any, must be in the same amounts against both defendants, but it is important for the jury to know that the plaintiff may not collect the amounts of the verdicts from both defendants.</p> <p>“29. If the jury find that both defendants are liable, under the counts for death the jury are to assess damages against each defendant according to the degree of culpability, but it is important for them to know that the plaintiff cannot recover the full amounts of the damages thus assessed against both defendants.</p> <p>“ 30. When two or more persons either jointly or concurrently cause damage to another, such other may recover damages against all the wrongdoers in the same amounts, but such other may not collect the amount of the verdicts from all but may get satisfaction of only one of such verdicts.</p> <p>"31. If the jury should bring in verdicts for the plaintiff upon the death counts both against the defendant Gas Company and the defendant Edison Electric Illuminating Company and those verdicts stood and went to judgment, the plaintiff would not be permitted to collect judgments in both cases upon the death counts. In such case, if there was any difference in the verdicts of the jury upon the death counts, if the jury gave a larger verdict in one case than they did in the other upon such death counts, it may be very natural to suppose that she would content herself with the larger judgment and let the other go, but she could not collect both, and that is important for the jury to know.</p> <p>“32. In the event that upon the counts for death the jury find verdicts for the plaintiff against both defendants, the sum total of such verdicts upon the death counts cannot exceed the sum of ten thousand dollars.</p> <p>“33. Even though under the terms of the death statute the amount of the penalty imposed upon a defendant depends in each case upon the degree of culpability upon the part of the particular defendant in each action and in no way depends upon the fact that there is another defendant also liable to pay a similar penalty for negligently causing the intestate’s death, even though the negligent act of the other defendant was a cause of the death concurrent with the negligent act of the defendant in the action in question, the sum total of the penalties thus assessed cannot exceed the amount fixed by the statute, to wit: ten thousand dollars.</p> <p>“ 34. The plaintiff is not entitled upon the death counts to have each action against each defendant for negligently causing the intestate’s death decided upon its own merits without regard to the fact that another action was pending against another defendant based upon the same facts.”</p> <p>On the subject matter of the twenty-eighth request, the judge charged the jury, “ on that first count in each case, if you find for the plaintiff, you must assess the same amount in each case. . . . So in this case, whatever sum you find for the plaintiff, if you find for her, the sum will be what was reasonable compensation for him, for the injuries that he received — I, mean the deceased, the boy — what was reasonable compensation. Having ascertained that, if you find as against both defendants, you will put that same amount in each case, and don’t worry or feel at all disturbed that there will be any collection of that money against both, that both will have to pay it. It can’t be done. Put it in each case and then the law will see to it there is only one payment of the sum.”</p> <p>Exceptions taken to the charge of the judge are described in the opinion. The jury found for the plaintiff in each case on the count for conscious suffering in the sum of $1,000; and for the plaintiff on the counts for causing death, in the action against the gas company in the sum of $8,000, and in the action against the electric company in the sum of $10,000.</p> <p>After the return of the verdicts, the plaintiff, suggesting in each action “that interest was not added to the verdict rendered therein under the terms of St. 1913, c. 290,” moved “ that interest be added thereto in accordance with the provisions of said statute,” and the motions were allowed.</p> <p>Both defendants alleged exceptions.</p> <p>St. 1913, c. 290, § 1, is as follows: “In any suit at law hereafter brought in which a verdict is given for pecuniary damages for the death, with or without conscious suffering, of any person, whether or not such person was in the employ of the defendant whose negligence is determined to have been the cause of death, there shall be added to the amount of the verdict interest thereon from the date of the writ.”</p>

<p>Two actions of tort for the causing of personal injuries to and the deaths of the plaintiff’s intestates, John KashinsM and Leo Nawrocki. Writs dated September 22, 1919.</p> <p>The declarations are described in the opinion. The actions were tried together before Irwin, J. Material evidence and exceptions saved by the defendant are described in the opinion. The jury found for the plaintiff in each action on the first count of the declaration in the sum of $6,300; and the defendant alleged exceptions.</p>

<p>Tort for causing personal injury to and the death of William Adamowicz, the plaintiff’s intestate. Writ dated August 19,1918.</p> <p>The action was tried before Sisk, J. Material counts of the declaration and evidence at the trial are described in the opinion. At the close of the evidence, by order of the judge, the jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Petition, filed in the Land Court on March 12,1920, and after-wards amended, for the registration of the title to land on the northerly side of Merrimack Street in Lowell.</p> <p>The petitioner is the successor in title of one Thomas Nesmith, and the respondents are successors in title of one John Nesmith.</p> <p>The petition was heard by Dams, J. Material facts are described in the opinion. The judge ruled "that the respondents’ easement in the common entrance, stairways and landings is limited to the joint life of the respective buildings and, on the destruction of either, terminates,” and to that ruling the respondents alleged an exception.</p> <p>The case was argued at the bar in January, 1921, before Rugg, C. J., Braley, Crosby, Pierce, & Jenney, JJ, and afterwards was submitted on briefs to all the Justices.</p>

<p>Burning with Intent to Defraud Insurer. Witness, Cross-examination. Practice, Criminal, Variance, Conduct of trial.</p> <p>At the trial of an indictment charging that the defendant, before a burning of Ms 'dwelling house by another with intent to defraud certain insurance compames, "did incite, procure, aid, counsel, hire and command” the commission of the crime, it appeared that, eight days after a purchase of the house in question by the defendant and two days before the fire, the defendant’s attorney had left policies of insurance thereon, duly assigned by the seller to the defendant and by the defendant made payable to the seller as a third mortgagee, with an insurance agent in order to obtain the assent of the compames thereto, and that on the next day, that preceding the fire, a notice had been sent to the attorney that the compames’ assent was refused, the policies being later returned to Mm. The policies were payable, in case of loss, to first and second mortgagees as their interest might appear. It also appeared that after the fire, wMch involved a loss of 81,191, the insurance was adjusted for $650, that payment was made by checks of the companies payable to the order of the defendant and the mortgagees, and that, with the defendant’s consent, the money was paid to the mortgagees, to the municipality for taxes and to the defendant’s attorney for services. There also was evidence tending to show that the defendant expected some pecuniary benefit to result to him from the fire. The defendant asked that a verdict of not guilty be ordered on the ground that there was no evidence that he intended to defraud the insurers. The request was refused. Held, that the request properly was refused.</p> <p>At the trial above described, there was evidence tending to show that the person alleged to have been the principal in the commission of the crime to which the defendant was accessory received money from the defendant to set the fire; that he engaged and paid a third person to assist him, paid for turpentine for that purpose, and made holes in walls and a ceiling to enable the fire to spread. This alleged principal, who testified for the Commonwealth, testified that he “made the fire.” The third person testified that the alleged principal gave him a cigarette with which the fire was started. The defendant moved that a verdict of not guilty be ordered on the ground of variance. The motion was denied. Held, that the jury were warranted in finding that the alleged principal was either a joint principal or the sole principal, and that the motion properly was denied.</p> <p>In the practical administration of justice, especially in a criminal case, the trial judge must be given a broad discretion as to the extent and scope of legitimate cross-examination.</p> <p>It was within the discretion of the judge at the trial above described, after the defendant had named several parcels of real estate which he had owned and had testified that he owned a certain shop which he previously had forgotten to mention, to permit him to be asked in cross-examination whether he had forgotten to mention the shop because he had a fire there.</p> <p>At the trial above described, the judge permitted the district attorney to inquire of the defendant in cross-examination as to his acquaintance with certain persons, whom he named, and, upon the district attorney stating as his reason for the inquiry, “I am offering this line of examination to show an atmosphere in this case that this man was surrounded by, to show his state of mind, that he was constantly in the company of the fire-makers and the people who had fires in East Boston, some of whom have been convicted and are now serving terms in prison, and others who are indicted,” refused to permit the inquiry to proceed further. The defendant then asked the judge to "strike out” the remarks of the district attorney above quoted, and excepted to a refusal to do so. The defendant did not ask for an instruction to the jury to disregard the remarks. Held, that, the remarks of the district attorney not being evidence, no exception lay to the refusal to strike them out, although they were irrelevant and immaterial; and no error was committed.</p>

<p>Bill in equity under St. 1909, c. 514, § 23, filed in the Superior Court on November 11, 1918, against George Baker Long, the city of Boston and the National Surety Company, to reach and apply, in satisfaction of a claim for labor performed or furnished and for materials used by the plaintiff as subcontractor under the defendant Long in the performance of the public work of building an addition to the Public Library building in Boston, cash and bond security held by the city in accordance with the provisions of the statute.</p> <p>Thirty-five other subcontractors of Long were permitted to intervene for the purpose of presenting their claims.</p> <p>The suit was referred to a master. The master’s findings as to a claim of the National Bank of Worcester were as follows: “The bank is a party defendant by amendment to the bill of the plaintiff, Otis Elevator Company. The bank furnished no labor or materials to Long, but it loaned $10,000 to him, for which it took a promissory note payable on demand, dated November 19, 1917. The bank took from Long as collateral security for the payment of the note assignments of balances due to Long on contracts with the City of Buffalo, the City of Boston and the State of New York. The assignment of the balance due to Long from the City of Boston was dated November 19, 1917, and was recorded in the office of the City Clerk of Boston on November 28, 1917. It states that the balance due from the city was $23,382.80. No payments on account of said note have been made to the bank.”</p> <p>Other material findings of the master are described in the opinion. Certain intervenors and the defendant surety company filed objections and exceptions to the report. The report, besides stating findings of fact, presented certain questions of law. The suit then was heard upon the pleadings, the master’s report and the exceptions thereto by Wait, J., who, on January 5, 1920, filed a memorandum of findings and rulings, and by his order an interlocutory decree was entered overruling the exceptions to the report and confirming the report. The suit afterwards was reserved for this court as stated in the opinion.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 13, 1919, by Fanny Holt Ames, Old Colony Trust Company and Daniel F. Buckley, executors and trustees under the will of William Hadwen Ames, late of Easton, for instructions.</p> <p>The defendants include Fanny Holt Ames, the testator’s widow, the children of his brother, Oakes Ames, his three sisters Evelyn Ames Hall, Anna Lee Ames Nowell and Susan Ames Taylor, and their children, such of whom as were minors being represented by guardians ad litem, the children of the testator’s sister Lillian Ames Chatman, one of whom, a minor, was represented by a guardian ad litem, the Massachusetts Institute of Technology and Edward N. Coding, guardian ad litem for persons not ascertained or not in being who were or might become interested in the subject matter of the suit.</p> <p>Upon certain issues of fact raised by the answers the suit was referred to a master. The issues between the parties and material facts found by the master are described in the opinion.</p> <p>The eleventh clause of the will of William Hadwen Ames was as follows:</p> <p>“After the. payment of all preceding legacies, bequests and devises under this will, I give, devise and bequeath all the rest, residue and remainder of my property, real, personal and mixed, including all the property over which I have power of appointment and disposal, as follows, namely: I give, devise and bequeath to-the child or children of my brother, Oakes Ames, who are living at the time of my decease, a one fifth share in said rest, remainder and residue of my estate.</p> <p>“I give, devise and bequeath to my sister, Evelyn Ames Hall, a life interest in a one fifth share of the said rest, residue and remainder of my estate, and at her death, I give, devise and bequeath said one fifth share outright to her child or children, if any. If she leaves no child or children, then upon her death, said one fifth of my estate is devised and bequeathed to the other four beneficiaries herein named to be added to their one fifth interest and they shall take such an addition to their share under the same conditions, in the same proportions and in the same way as that part of my property given to them in this clause. And in the case of the children of my sister, Lillian Ames-Chatman, should said addition go to them it shall be held as a life interest in trust as hereinafter provided, and upon the death of the last of said beneficiaries it shall go to the Massachusetts Institute of Technology.</p> <p>[A third one-fifth was given to the testator’s sister, Anna Lee Ames Nowell, for life with remainder to her children, the same language being used, except the name, as was used in the above provisions as to his sister Evelyn Ames Hall; and a fourth one fifth likewise was given to his sister Susan Ames Taylor and her children. The provision as to the áfth one fifth was as follows:] “It is my wish and will to give as hereinafter set forth to the child or children of my sister, Lillian Ames Chatman, who survive their father, Harry L. Chatman, a life income in the remaining one fifth of my said estate and upon the death of the'last one of said children to give said fifth of my estate to the Massachusetts Institute of Technology.</p> <p>“I, therefore, give, devise and bequeath to the trustees herein named the remaining one fifth interest of my estate to hold the same in trust during the lives of the beneficiaries herein designated for the following purposes, namely, to collect and hold the income from said one fifth ■ of my estate (and on an addition thereto) until the death of said Harry L. Chatman and add the same to the principal and after his death to pay the net income of this trust fund to the then living child or children of my sister, Lillian Ames Chatman, in quarterly payments or at such times as meets the judgment of the Trustees, share and share alike, on their sole and separate receipts. And said life interest which I hereby give in trust to said children of my sister Lillian Ames Chatman, shall be free from the interference or control of their creditors or any one of them and such bequests shall not be alienated by them or any of them by anticipation. And it is my will that upon the death of any of said children that his or her share shall go to the surviving child or children under this trust and that upon the death of the last such child, then, and in that event, I give, devise and bequeath said one fifth share of my property (with any addition thereto) to the Massachusetts Institute of Technology absolutely and outright with no restrictions except that it shall be known as the 'William H. Ames Fund’ and I direct said Trustees to carry this provision of my will into effect.”</p> <p>The suit was reserved by Pierce J., for determination by the full court.</p> <p>The case was argued at the bar in October, 1920, before TJe Courcy, Crosby, Carroll, & Jenney, JJ., and afterwards was submitted on briefs to all the Justices except Pugg, C. J.</p>

<p>Corporation, Foreign: assessment for unpaid balance due on stock; Receiver. Judgment. Res Judicata. Receiver. Fraud. Estoppel. Limitations, Statute of.</p> <p>A decree of the District Court of the United States for the District of Connecticut in a suit in equity against a Connecticut corporation wherein a receiver was appointed, confirming a report of a special master relating to assessments due from certain stockholders by reason of unpaid balances due upon stock held by them and directing the receiver to collect such assessments by suits if necessary but leaving for determination in such suits by the receiver the questions, whether any stockholder acquired his particular stock in good faith and without notice of any unpaid balance thereon and the circumstances under which his particular stock was acquired by him, and whether such facts might be a defence in an action to collect the assessment or might be material in such an action, is binding upon the defendant in an action brought by the receiver against a stockholder in Massachusetts for an assessment adjudicated in the decree except as to the personal defences therein described, although such defendant received Only a postal notification of the proceedings in Connecticut and never was personally served with process nor appeared therein.</p> <p>In the action by the receiver against the Massachusetts stockholder above described, it appeared that the statutory law of Connecticut at the time when the defendant became a stockholder and continuing to the time of the trial was that “Every stockholder, whether an original subscriber or not, shall be liable for any balance due on the stock held by him. If a corporation is placed in the hands of a receiver . . . such receiver . . . shall have the powers of the board of directors in calling in instalments on stock; ” that certain common stock held by the defendant was purchased from stock originally issued to another person, to whom it was delivered for “options and other things of claimed cash value” but no real value, which "were never put on the books of the company and never counted into the company’s assets in any way” and were not delivered to the company; that the original purchaser turned the stock back to the corporation, and it then was issued to the defendant as a bonus with certain preferred stock purchased by him. Held, that, even if it were open to the defendant in the action in the Massachusetts court to attack the decree in the receivership proceedings in the United States District Court collaterally on the main issues of the necessity and extent of the assessments, such defence was groundless.</p> <p>In the action by the receiver against the Massachusetts stockholder, above described, the defendant interposed, as a personal defence in the nature of an equitable estoppel, that he was induced to purchase the stock by misrepresentations of an agent of the corporation, not known to the purchaser to be false, that the stock was "fully paid and non-assessable.” Held, that, whatever remedy the defendant might have had before the appointment of a receiver of the corporation, in this action by the receiver to recover the difference between the par value of the stock and what was paid for it when issued, the liability created by the Connecticut statutes could not be avoided by reason of fraud or a misrepresentation by the corporation.</p> <p>The Massachusetts stockholder, the defendant in the action above described, purchased his stock in 1908. The receiver of the corporation was appointed in 1909. Without there having been a preliminary assessment upon the stockholder, a decree was entered in the receivership proceedings in April, 1911, directing the receiver "to call upon the stockholders . . . to pay the unpaid, if any there be, par value of the stock held by each of them respectively,” and to institute suits to recover such sums. In 1913, a decision was rendered in the receivership proceedings that the decree of 1911 should not have been made until there had been a preliminary assessment of the stockholders, and the suit was, referred to a master for such an assessment. In 1915, a decree was entered whereby a report by that master was confirmed, assessments accordingly were made, the “stay of proceedings against stockholders” was "vacated,” and the receiver was ordered to enforce collection of the assessments. The Massachusetts action was brought in March, 1917, and the defendant set up R. L. c. 202, § 2, as a defence. Held, that the cause of action did not accrue as early as the time of the appointment of the receiver in 1909, and that the action was not barred by the statute of limitations.</p>

<p>Negligence, In use of highway. Evidence, Presumptions and burden of proof. Municipal Corporations, By-laws and ordinances. Way, Public. Practice, Civil, Ordering verdict, Exceptions, Charge to jury.</p> <p>At the trial of an action of tort for personal injuries, brought by a boy who, when riding on the bar in front of the seat of a bicycle as the guest of the operator, was injured when the bicycle was run into from behind by a motor car driven by the defendant, it appeared that an ordinance of the municipality where the accident occurred required that “No person shall, within the limits of any public street or highway in the city, play at any game ... amusement, or exercise, interfering with the convenient and free use of such street or highway by persons traveling or passing along the same.” The boys testified -without contradiction that they were returning from a ride to a neighboring town, whither they had gone.to see “the old burying ground and went out purely for amusement.” There was no other evidence as to what the boys were doing or why they were on the highway. The judge refused requests of the plaintiff for rulings in effect that findings were not warranted that the plaintiff at the time of the accident was “ playing at any game, or amusement, or exercise,” or -that there was any violation of the ordinance, and charged the jury that it was for them “to say whether or not this plaintiff and his companion were using the highway in such a way as to constitute on their part the going into or carrying out of some game or amusement or exercise as distinguished from some purpose of travelling for necessity for example, or on some business as distinguished from something that was purely and simply amusement.” Held, that</p> <p>(1) If the testimony of the boys was believed, they were using the public way as travellers and not as a playground;</p> <p>(2) If the testimony of the boys was not believed, there was no evidence warranting a finding that they were engaged in mere sport;</p> <p>(3) There was no violation of the ordinance;</p> <p>(4) The rulings requested should have been given;</p> <p>(5) The error in refusing the rulings requested was not cured by the charge.</p>

<p>Way, Private. Easement. Equity Jurisdiction, To enjoin obstruction of private way, Damages.</p> <p>In a suit to enjoin the obstruction of a private right of way, it appeared that the plaintiff had a right of way ten feet wide from land owned by him over land of an adjoining landowner to and connecting with the private way on the land of •the defendant, which connected with a public way upon which the parcels of both parties abutted. This way over the defendant’s land was twenty-five feet wide and the plaintiff by deed had been given a right to use it "for the purposes incident to the use and enjoyment” of his land. A master to whom the suit was referred found that the defendant began altering and extending a building on his premises in the latter part of July of a certain year, erected a high board fence blocking the way where it connected with the public way, leaving a gate therein as wide as half of the way, excavated half of the way and planned to reduce the way by half of its width; that the plaintiff had a conversation with the defendant on August 25 in which he asserted his rights; that the defendant then suspended operations within the limits of the way and that, after fruitless attempts of counsel for the parties to adjust the controversy, the suit was brought on December 15; that the carrying out of the plans of the defendant would result in a damage to the plaintiff amounting to SI,000 and that to the date of the finding no damage had resulted to the plaintiff. A judge, who heard the suit on the pleadings and master’s report, found that the defendant had not intentionally invaded the plaintiff’s rights, that the narrowing of the way would not so seriously impair the plaintiff’s use of the way that he could not be compensated in damages and that to restore things to the condition in which they were before the acts complained of Would subject the defendant to great inconvenience and loss; and by the judge’s order a final decree was entered awarding the plaintiff $1,000 damages, directing the removal of the gate and denying further relief. The plaintiff appealed. Held, that</p> <p>(1) The plaintiff’s easement was commensurate with the entire width of twenty-five feet;</p> <p>(2) The plaintiff had seasonably asserted his rights;</p> <p>(3) The plaintiff should not be compelled to surrender his easement in part for a valuation although the pecuniary benefit to the defendant of such a surrender might outweigh any disadvantage to the plaintiff;</p> <p>(4) The decree should be reversed, nominal damages should be assessed to the plaintiff and the defendant should be directed to restore the way to its original condition and should be permaneptly enjoined from obstructing or interfering with the plaintiff’s lawful use of it within the entire limits as granted.</p>

<p>Practice, Civil, Report, Entry of judgment. Rules of Court. Judgment. Superior Court.</p> <p>If, following an order of the Superior Court that an action therein pending after a verdict for the defendant should “stand” until the submission of a draft report, there were seventeen successive extensions of the time within which a draft report should be presented, extending over more: than three and a half years, a draft report finally is" presented more than a year after the expiration of the last of such extensions of time, the court has no jurisdiction under G. L. c. 231, § 111, and Rule 55 of the Superior Court (1915) to allow such a report or to report the case.</p> <p>If, in an action of contract in the Superior Court, in which a verdict had been found for the defendant by order of the trial judge and the time for the filing of exceptions to such order had elapsed, a time was fixed by order of the judge within which a draft report should be presented to him, which time was extended several times, and no draft report was presented within the time so extended and no further extension of time was granted, the action automatically went to judgment under G. L. c. 235, § 1, and Rule 57 of the Superior Court (1915), although no actual entry to that effect was made by the clerk of the court.</p>

<p>Bill in equity, filed in the Superior Court on July 23, 1919, and afterwards amended, by Bertha E. Brady, both individually as widow, and as executrix of the will of William P. Brady, seeking a decree that the defendant, James Brady, brother of William, held one undivided one half interest in certain real estate in Hoiyoke subject to a resulting trust in favor of the plaintiff as sole devisee and legatee of her husband.</p>

<p>Negligence, Employer’s liability: duty to inspect and to warn. Evidence, Matter of conjecture.</p> <p>At the trial of an action of tort against the proprietor of a bakery, who was not a subscriber under the workmen’s compensation act, for personal injuries received by a dish washer in his employ, the evidence tended merely to show that, when the plaintiff took from a drawer one from among a number of laundered bags in which flour had been received, which were used as dish cloths, a pin, which was in one of the bags, stuck into her finger. There was no evidence that the defendant or any of his employees had reason to know of the existence or presence of the pin and no evidence as to how or when the pin got into the bag and none warranting a finding that its presence or that of any other dangerous instrument in the bag ought to have been seen or guarded against by examination or otherwise. Held, that judgment should be ordered for the defendant.</p>

Certification to the Superior Court under the provisions of the workmen’s compensation act of two decisions of the Industrial Accident Board..

<p>Contract, with a declaration as amended upon an account annexed for $80 with two items as follow's: “ (1) To use and occupation of premises at 29 Upton Street, Boston, Mass., from April 20, 1919, to May 9, 1919, as tenant at will, $47.50; (2) To use and occupation of premises at 29 Upton Street Boston, Mass, from May 9, 1919, to May 22, 1919, as tenant at sufferance, $32.50.” Writ in the Municipal Court of the City of Boston dated May 22, 1919.</p>

<p>Petition, filed in the Probate Court for the, county of Suffolk on October 20, 1920, for the proof and allowance of the will of Mary S. ICnowlton, late of Boston.</p> <p>The record did not include a copy of the order of notice nor of the affidavit of its service.</p> <p>The only next of kin named in the petition was Edward Roundy of Marblehead, an uncle of the decedent. The alleged will contained eleven paragraphs, Edward Roundy being given $100 by the second paragraph, Elizabeth G. Hanson $5,000 by the third paragraph and Lillian E. Hanson, daughter of Elizabeth G. Hanson, $5,000 by the fourth paragraph. There were other specific legacies amounting to $16,700; and a trust fund of $10,000 was established, the principal of which on the death of certain life beneficiaries, was given to Abbie H. Goodrich, who also was named as executrix and residuary legatee.</p> <p>After the entry of the appearance by an attorney at law on behalf of Lillian E. Hanson, the will was allowed by Prest, J., in her absence and in the absence of her attorney when the case was called for hearing in the circumstances described in the opinion; and she claimed an appeal.</p> <p>After the allowance of the will and without the consent of the court, an appearance was entered by the same attorney at law on behalf of Edward Roundy, with the statements described in the opinion, and, the judge refusing to revoke the decree, nineteen days later an appeal was entered by Roundy “through his temporary guardian, Elizabeth G. Hanson.”</p> <p>At the request of the appellants, the judge reported the case to this court, the report being made “as though both appeals were consolidated.”</p>

<p>Motor Vehicle, Registration. Trespass. Way, Public: use of by unregistered motor vehicle.</p> <p>Where, at the trial of an action of tort, a material question is, whether a motor vehicle of the defendant was properly registered under St. 1909, c. 534, and the defendant testifies .that previous to January 1 he had applied for new registration and had received the receipt authorized by § 11 of the statute, which was with the vehicle, it cannot be ruled as a matter of law that the vehicle “was not properly registered.”</p> <p>At the trial of an action against the owner of a motor car for damages resulting from a collision with the car between half past twelve and one o’clock on the morning of January 1, 1919, there was evidence tending to show that the defendant had applied for registration of the car on the day previous and had received the receipt in lieu of registration authorized by St. 1909, c. 534, § 11, which was in the car at the time of the collision, but that no number plates for the new registration had been delivered to him, so that none such were attached to the car. The plaintiff asked for a ruling that “The defendant could not lawfully allow his automobile to be operated on the highway, on January 1, . 1919, . . . unless it was then equipped with number plates furnished by the Massachusetts highway commission for the year of 1919, and had said number plates displayed at the front and rear end of said automobile.” The judge refused so to rule. Held, that, by reason of the provisions of St. 1909, c. 534, § 5, the ruling should have been given.</p>

<p>Indictment, found and returned on September 10,1920, charging the defendant with assault with intent to commit rape upon one Catherine M., called Mabel, Stafford, a child about five years and ten months of age at the time of the assault.</p> <p>There was a trial in the Superior Court before Cox, J., and the Commonwealth offered Catherine M. Stafford, then just past six years of age, as a witness. The judge interrogated her, and she answered as follows:</p> <p>Q. “I am going to ask you some more questions. You don’t mind, do you? ” A. “ No.” (Shakes her head.) — Q. “ What is your name?” A. “Mabel Stafford.” — Q. “How old are you?” A- “Six.” — Q. " Where do you live? ” A. “ 10 Bolton Place.”— Q. “What city?” A. “Lowell.” — Q. “Do you go to school?” A. “No, I don’t go to school.” — Q. “What do you do?” A. “Stay in the house.” — Q. “I thought you went to the sisters’ school. Do you?” A. “Yes.” (Shakes her head.) — Q. “Do you go to the sisters’ school?” A. “Yes.” —Q. “You used to go to the sisters’ school, is that it?” A. “Yes.”— Q. "Do you go to Sunday School?” A. "No.” —Q. “To church?” A. “Yes.” — Q. "I want to ask you a little more about the same thing I asked you before this morning. Do you know what happens to anybody when they tell alie?” A. “Yes.” — Q. “What is it?” A. “Lick them.” — Q. “Who does the licking?” A. “The mother.” — Q. "Anything else happen to them?” A. "Whipping.” — Q. “Anything else besides that?” A. “No.” (Shakes her head.) — Q. “Do you know why you are here today?” A. “No.” — Q. "Do you know what an oath is?” A. Mouth?” — Q. "No, oath.” A. "No.” (Shakes her head.) — Q. “You told me that all the good people went to Heaven, this morning, didn’t you?” A. "Yes.” (Shakes her head.) — Q. "Where do the bad people go?” A. “Down to the ground.” — Q. “If anybody asked you, told you to tell the truth, and you said that you would, what would you do?” A. “I would do nothing.” — Q. “Would you tell the truth or would you tell a wrong story?” A. "Tell the truth.” — Q. “Suppose you didn’t tell the truth. Suppose you told a wrong story, what then?” A. “ Get a licking.” — Q. "Is that all?” A. "Yes.” — Q. “Is it right to tell lies?” A. “No.” (Shakes her head.) — Q. "Why not?” A. “Don’t know.” — Q. “How long have you gone to the sisters’ school?” A. “I don’t know.” — Q. “What did they tell you there when you went? Did you have anything about the catechism? Ever hear about that?” A. “Yes.” — Q. “What is it? Do you know any of it?” A. "No.” (Shakes her head). — Q. "Did you ever hear of God?” A. "No.”</p> <p>The judge then stated: "As it stands, I cannot bring myself to the conclusion that this girl can qualify as a' witness. I appreciate the seriousness of the charge against the defendant, not only in so far as he is concerned, but the community as a whole. It appears that this little girl has been some time to the sisters’ school, and I should assume that she must have had some sort of instruction. She appears to be bright and intelligent, and her answers are direct, and it does not appear, so far as I can see, that she is answering anything as a result of any instruction. . . . The girl seems to be intelligent, and by that I mean she has intellect that seems to be responsive and I should be inclined not to make my finding upon her story at this time if it should seem worth while to give her some instruction. That, however, is a matter, the result of which cannot be foreseen, and I will leave it entirely with you. I will make my ruling now or later.”</p> <p>With the approval of the judge, the trial of the case was suspended until the next day, the child in the meantime talking with the parish priest of her mother’s religious faith. On the next day the child was further interrogated by the judge and answered as follows: Q. “How are you this morning?” A. “Fine.” — Q. "Did the priest talk to you last night?” A. “Some.” — Q. "Where did you see 'him, at your house, or did you go to his house?” A. “At the priest’s house.” — Q. “Do you know now what happens to little girls when they tell lies?” A. “God punishes them.” — Q. “Who?” A. "God.”</p> <p>The defendant’s counsel then interrogated and the child replied as follows: Q. “How long were you at the priest’s house last night?” A. “Went out a little while.” — Q. “You didn’t know anything about God until last night?” A. “No.” (Shakes her head.) — Q. “Did the police officer go with you?” A. “Yes.” — Q. “To the priest’s house?” A. “Yes.” — Q. “Who is God?” A. “God is a creator.” — Q. “Do you know what you came down here to court for?” A. “No, sir.” — Q. “You don’t know what it means when you hold up your right hand in court? You don’t know what that means do you? ” A. "No.” (Shakes her head.) — Q'. “You don’t know what an oath is?” A. “I don’t know what it is.” — Q. “You don’t know — how does God punish anybody?” A. “Sends them down to the ground.” — Q. “Sends them in the ground?” A. “Down in the ground.” —Q. “Where is God?” A. “God is up in heaven.” — Q. “Who did you talk with besides the priest?” A. “What?” — Q. “Who did you talk with about God besides the priest?” A. “Mr. Petrie.” — Q. “Mr. í’etrie, he talked with you about God?” A. “Yes.” — Q. “And who.else?” A. “I don’t know who else.” — Q. “Was it last night after you left the court house that you went to see the priest?” A. “Yes.” — Q. “You were with — how long were you with the priest?” A. “Just a little while.” — Q. “You don’t know how long?” A. “No, I don’t know how long.” — Q. “Now if you came here in court and said something that wasn’t so —” A. “It would be a lie.”</p> <p>The judge thereupon ruled on the evidence that the child, was a competent witness and permitted her to testify, subject to an exception by the defendant. The defendant was found guilty; and alleged exceptions.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies.</p> <p>An injury, received by an employee of a tenant on the fifth floor of a building by reason of the premature starting of an elevator which he was entering at the first floor of the building on his way to work, occurred in the course of and arose out of his employment, within the provisions of the workmen’s compensation act, although the employer’s lease from the landlord, who maintained the elevator for the use of all the tenants in the building, contained no reference to use of the elevator, the elevator did not open directly upon the employer’s leasehold, communication being through a hallway, and there also was access to the premises by a stairway, if it appears that the obvious intent of the parties to the lease was that the employer and those in his service had a right to use the elevator for purposes properly connected with the occupancy of the leased premises and that most of the employees used the elevator.</p>

<p>Railroad, Abolition of grade crossing. Grade Crossing. Practice, Civil, Recommittal of report and decision of grade crossing commissioners.</p> <p>At the hearing by commissioners appointed under St. 1906, c. 463, Part I, §§ 29, 34, of a petition for the abolition of a grade crossing of a highway and a railroad, it was proper for the commissioners to receive and to give weight to evidence bearing upon the ability of the railroad corporation to respond to the financial burdens which would be cast upon it in the paying of its proportionate part of the expense of the abolishment of the crossing.</p> <p>The rule above stated is not afiected by St. 1914, c. 722, § 1.</p> <p>A denial of a motion to recommit a report and decision of commissioners appointed under St. 1906, c. 463, Part I, §§ 29, 34, is a proper exercise of judicial discretion where the report and decision were filed on August 19,1915, and the motion was filed on the fourteenth day of the next month but the motion was not heard until late in 1920, when one of the three commissioners had died and a second had become a judge of the Superior Court.</p>

<p>Contract for $240, alleged to be due to the plaintiff as a commission for procuring a purchaser of real estate of the defendant. Writ in the Municipal Court of the City of Boston dated May 1, 1920.</p>

<p>Bill in equity, filed in the Superior Court on April 6, 1915, and afterwards amended, for the reformation of a deed.</p>

<p>Will, Validity. Fraud. Undue Influence.</p> <p>The evidence, both direct and inferential, at the trial by jury of an issue, framed on an appeal from a decree of the Probate Court allowing a will of a woman which gave all her property, to the exclusion of the widow and two daughters of a son who had died fifteen years before the will was made, to her only surviving son, whom she had named executor without sureties on his bond, the issue being, whether the instrument was procured to be made by the fraud or undue influence of that son, warranted a finding that the will was not the free will of the testatrix and that the controlling influence of the son constrained her to do that which she would not have done if left to herself, so that an affirmative answer to the issue was warranted.</p>

<p>Corporation, Charitable, Right to maintain action for libel. Charity. Libel and Slander. Actionable Tort. Joint Tortfeasets.</p> <p>A corporation without capital stock, organized under R. L. c. 125, §§ 1, 2, “ for the purpose of promoting temperance and morality in this Commonwealth, and of owning, establishing and maintaining a place for a reading room and library and for social meetings of its members,” if subjected to public hatred, contempt or ridicule by the publication in bad faith and with malice of statements in print charging it with violation of law and with vile and reprehensible conduct in the management of its affairs, may maintain an action of tort therefor against those causing such publication, although the statements were substantially true and no specific damage resulted to the corporation, and in such an action general damages may be assessed.</p> <p>A publishing company was organized and incorporated and arrangements were made between it and an already organized socialistic publishing corporation, the purpose and effect of which were, not to create an independent self-supporting corporation, but to organize, manage and use the newly organized corporation as a creature or mouthpiece of the socialistic corporation for the circulation of its propaganda and the advancement of its "organization work,” and under this arrangement, the new corporation in bad faith and with malice published a libel of a charitable corporation. Held, that the charitable corporation might maintain an action of tort therefor against both the publishing corporations as joint tortfeasors.</p> <p>If a charitable corporation sought by a bill in equity to enjoin the publication, in newspapers owned and controlled by two corporations, of libellous statements concerning its character and the conduct of its affairs, and in that suit a special precept in foreign attachment of property of the defendant was issued and served, and if demurrers to the bill were sustained and, by leave of court, the plaintiff under R. L. c. 159, § 6, amended the bill in equity into an action of tort for libel, it cannot be held, that either the suit or the action at law was begun by trustee process, or that the court was prevented from having jurisdiction of the case by R. L. c. 189, § 1.</p>

<p>Frauds, Statute of. Contract, Implied. Practice, Civil, Report, Amendment.</p> <p>A breach by an owner of real estate in his lifetime of a contract which, by reason of the provisions of R. L. c. 74, § 1, cl. 4, § 6, is unenforceable, affords no ground of action against the administra'tor of his estate after his death.</p> <p>A woman, who, in consideration of an oral promise by the owner of certain real estate to "convey to” or to "leave to” her the real estate, took care of the owner and his brother and made a home for them during their lives, cannot maintain an action at law against the administrator of the estate of the owner fat the value of the real estate which he had failed to "convey to” her during his lifetime or to “leave to” her by his will.</p> <p>If the administrator of the owner of the real estate in the circumstances above described repudiates'the agreement of his intestate relating to the real estate, the woman may maintain against him an action at law for the value of the services she rendered to the intestate relying on the performance of the agreement.</p> <p>The woman in the circumstances above described brought an action of contract against the administrator of the owner of the real estate, the declaration in which contained four counts, all based upon the agreement to “convey ” or to .“leave” the real estate to her. After an opening statement by the plaintiff’s counsel in which he stated that “ the plaintiff was not seeking to recover dam-l ages for breach of the oral contract but was seeking compensation for services rendered ... for which services the plaintiff had received no compensation,” the judge “upon the pleadings and opening” ordered a verdict for the defendant and reported the case to this court for determination, it being agreed that, if “the plaintiff should have been allowed to have the case submitted to the jury upon any one or more of the four counts in her declaration upon showing evidence substantially as outlined by counsel in his opening, . . . judgment shall be entered for the plaintiff in ” a certain sum; and that, “ otherwise, judgment shall be entered upon the verdict.” This court, having determined that every count of, the declaration was for a breach of the unenforceable contract and that an action could not be maintained thereon, but that, if the declaration were amended to include a count for the value of the services rendered by the plaintiff in reliance upon performance of the oral contract repudiated by the defendant, the action might be maintained, ordered that the plaintiff be given leave to amend within thirty days after rescript by adding a proper count to the declaration in accordance with the opinion, or by changing from law into equity for specific performance, joining with the administrator the heirs at law as parties defendant, upon such terms as the trial court might order, and that thereupon the verdict be set aside and the case stand for trial; but that, if the plaintiff did not so amend, judgment should be entered for the defendant.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on October 17, 1919, for the proof and allowance of the will of George Becker, late of Boston.</p> <p>By the will, $50 was given to William C. Becker, a brother of the testator, and $50 to Catherine E. Linker, a sister, and all the rest, residue and remainder of the estate, amounting to about $8,000, was given to Jacob F. Becker, a brother, the petitioner, who also was nominated as executor without being required to give a surety or sureties upon his official bond.</p> <p>William C. Becker and Catherine E. Linker opposed the proof of the will. In the Probate Court the will was allowed by Grant, J. On appeal, issues were framed, as described in the opinion, and sent to the Superior Court for trial. The trial in the Superior Court was before Quinn, J.</p> <p>At the trial the testimony of a number of witnesses called by</p> <p>the contestants as to declarations made by the executor tending to show that he had procured the making of the will by fraud and undue influence was admitted subject to the executor’s exception. William C. Becker testified that, after the will was read following the testator’s funeral, the executor said: “That is the time I fixed you [to Mrs. Linker] and that is the time I fixed you [to William Becker]. Lizzie [Mrs. Linker] did not send a postal .card and you [William Becker] did not cut his grass.” Mrs. Linker testified, with reference to the same occasion, that the executor pointed his finger at her and said, “I fixed you, didn’t I?;” that she replied, “You did, all right. I expected five dollars from- you and you gave me fifty dollars;” that the executor said, "You did not send him a postal and Bill did not come to cut his grass;” and then, pointing his finger at William Becker, said, "I fixed you, too, and will fix you again;” that the executor also said to her, “I made George sore on you.” There was other testimony to the same effect.</p> <p>Other material evidence and exceptions saved by the executor are described in the opinion. The jury answered the first issue in the negative and the second in the affirmative. On a motion by the executor that both the answers be set aside and a new trial granted, the judge set aside the answer to the first issue and denied the rest of the motion. The executor alleged exceptions.</p> <p>The case was argued at the bar in January, 1921, before Rugg, C. J., De Courcy, Crosby, Pierce, & Jenney, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>Negligence, Street railway, Contributory negligence.</p> <p>At the trial of an action against a street railway company for personal injuries, there was evidence warranting the finding of the following facts: During an" evening in March, 1918, the plaintiff shortly before midnight had occasion to cross a street in a city. Before leaving the sidewalk he stopped, looked in both directions and saw a streetcar about one hundred and twenty feet away and then moving about twelve miles an hour. “Thinking that the coast was clear” and that he had plenty of time, he proceeded on the cross walk at a three or four mile pace, and had almost cleared the farther rail of the second track when he looked up and saw that the car was right upon him. He had gone twenty-one feet while the car was going one hundred and twenty feet. He jumped, but did not quite clear the fender, and was thrown so that his right hand went underneath the wheel. The street was well lighted at the place of the accident. No gong was sounded. Held, that it could be found that the motorman increased the speed of the car after the plaintiff looked at it, and that the questions, whether the plaintiff was in the exercise of due care and whether the motorman was negligent, were for the jury.</p>

<p>Tax, Excise on corporation. Corporation, Taxation, Change of capital stock-Words, “ Capital stock,” “ Such increased stock.”</p> <p>The words, “ capital stock ” and “ such increased stock ” of a corporation, as used' in St. 1903, c. 437, § 40, as amended by St. 1920, c. 349, § 6, mean a genuine addition to the property permanently dedicated to the business enterprise for the-prosecution of which the corporation was organized.</p> <p>If the stockholders of a business corporation, whose authorized capital stock is composed of fifty thousand shares of preferred stock and fifty-five thousand shares of' (common stock, each share of the par value of $100, fifty thousand shares of the common stock being outstanding, vote to change the authorized shares of the common stock into one hundred thousand “shares of common stock without par value and otherwise having the preferences, voting powers, restrictions, and qualifications of the present outstanding shares of common stock; and that the holders of the shares of outstanding• common stock heretofore with a par value of $100-a share shall exchange the same and the certificates therefor for shares of common, stock without par value, on the basis of two shares without par value for one share with par value of $100, such shares without par value being issued for and in place of said shares of common stock heretofore outstanding and without any capitalization or impairment of any existing surplus or accumulated and undistributed profits,” the carrying out of such vote does not comprise an attempt to increase the capital stock of the corporation, under Sts. 1903, c. 437, § 40; 1920, c. 349, § 6, and does not justify the exaction of an excise tax under Sts. 1903, c. 437, § 89; 1920, c. 349, § 9; c. 598, § 2.</p>

<p>Tax, Excise. Corporation, Taxation, Increase of capital stock, Stock of no par value.</p> <p>The stockholders of a corporation with an authorized capital stock of $7,000,000, divided into thirty thousand shares of preferred stock, par value $100 per share, and eighty thousand shares of common stock, par value $50 per share, passed a vote “ That the par value of the present authorized common stock of this corporation, consisting of eighty thousand shares, be and it hereby is changed from $50 per share, to shares without par value, this change in par value to take effect November 4,1920;” and a further vote “ That the capital stock of the corporation be increased from eighty thousand shares without par value, to two hundred and fifty thousand shares of stock without par value by the addition of one hundred and seventy thousand shares of stock without par value to the present authorized common capital stock, said additional stock to be issued on or after November 4,1920.” Votes also were passed amending the agreement of association and the articles of organization of the corporation to conform to the changes wrought by the two votes just described. Held, that</p> <p>(1) The carrying out of the first vote did not effect an increase of capital stock under Sts. 1903, c. 437, § 40; 1920, c. 349, § 6, and did not justify the exaction of an excise tax under Sts. 1903, c. 437, § 9; 1920, c. 349, § 9, c. 598, § 2;</p> <p>(2) The first vote was complete and definitive and an entity in itself;</p> <p>(3) The carrying out of the second vote effected, under Sts. 1903, c. 437, § 40; 1920, c. 349, § 6, an increase in the capital stock of the corporation of one hundred and seventy thousand shares of no par value and justified the exaction under Sts.' 1903, c. 437, § 89; 1920, c. 349, § 9, c. 598, § 2, of an excise of 88,500;</p> <p>(4) It was of no consequence, as bearing upon the assessment of the tax, how the stockholders proposed to dispose of the additional shares of common stock of no par value;</p> <p>(5) A certificate filed by the officers of the corporation containing statements of terms of disposing of the one hundred and seventy thousand shares of common stock of no par value varying from those stated in the vote, had no bearing upon the legal effect of the votes.</p>

<p>Indictment, found and returned on November 5, 1920, charging that the defendant on August 21, 1920, at Cambridge “did attempt to steal one automobile and in such attempt did enter said automobile and endeavor to start it but did fail in the perpetration of said attempted offence, and was intercepted and prevented in the execution of said attempted offence.”</p> <p>On November 9, the defendant filed a plea in abatement on the ground “ that, while the grand jury was hearing, inquiring into and examining the matter of the indictment, one Henry F. Hurlburt, Esquire, who had previously questioned this defendant and prepared the case against him and who was not a member of the grand jury, and not the district attorney or his assistant, and was not a stenographer appointed by a justice of the Superior Court under R. L. c. 165, § 84, and was not a witness before the grand jury, and who was .not authorized to be present, was present in the grand jury room with the grand jury while it was so hearing, inquiring into and examining said matter.”</p> <p>On November 15, the defendant filed a motion for a bill of particulars, which was allowed, and on November 18, a bill of particulars, described in the opinion, was filed.</p> <p>On November 19, the defendant filed a motion to quash the indictment on the grounds (1) that the indictment was formally defective and did not set forth any offence known to the law fully and plainly, substantially and formally as required by art. 12 of the Declaration of Rights; (2) because it was not alleged that the automobile referred to was of any value; nor (3) either that the owner of the automobile was to the grand jurors known or was unknown; nor (4) the name and identity of the alleged owner of the automobile; nor (5) that the automobile was not the property of the defendant; nor (6) that the defendant “ did enter said automobile and endeavor to start it ” with intent to steal; nor (7) that the defendant did any act with criminal intent; and (8) because the indictment was “indefinite, vague and uncertain and appears to state a conclusion that the defendant did endeavor to start one automobile without stating what act, if anything, the defendant did or whether the ‘ endeavor ’ charged is intended to mean the defendant’s wish or desire or what it is intended to mean.”</p> <p>On November 19, the plea in abatement was overruled and the motion to quash was denied upon a hearing by Raymond, J., a plea of not guilty then was entered and, after a motion for further particulars was denied, the defendant was placed on trial upon two indictments, the one above set forth and an indictment charging that he and other defendants on or about August 1,1920, at Cambridge did conspire together to steal certain automobile tires of the value of more than one,hundred dollars of the property of some person to your grand jurors unknown. On the indictment for conspiracy the defendant was found not guilty. Material evidence bearing upon the indictment for attempt to steal is described in the opinion. The defendant was found guilty and alleged exceptions.</p>

<p>Three actions of tort, respectively for the causing of death of the intestate of the plaintiff in the first action, for causing personal injuries to the plaintiff in the second action and for causing damage to the motor truck of the plaintiff in the third action in a collision, on a grade crossing of a highway with the railroad of the defendant, of a motor truck of the plaintiff in the third action driven by the intestate of the plaintiff in the first action, with whom the plaintiff in the second action was riding. -Writs in the first and second actions dated March 16, 1917, and in the third action dated July 17,1917.</p> <p>In each action the declaration contained two counts, the first count being based upon a failure of the defendant to give the statutory signals required by St. 1906, c. 463, Part II, § 147, and the second alleging simple negligence of the defendant or its servants or agents.</p> <p>In the Superior Court, the actions were tried together before Dana, J. Material evidence and requests of the plaintiff for instructions are described in the opinion. The jury found for the defendant in each action; and the plaintiffs alleged exceptions, which, after the resignation of Dana, J., were allowed by Hammond, J.</p>

<p>Two petitions, filed in the Superior Court under St. 1909, c. 490, Part I, § 77, on March 6, 1916, and on February 5,1917, respectively appealing from refusals of the assessors of taxes of the town of Belmont to abate a tax of $26,334.56, assessed in 1915, and a tax of $25,916.68, assessed in 1916 upon property of the petitioner in the town of Belmont used by the petitioner to conduct the McLean Hospital.</p> <p>The petitions were referred to a commissioner, who filed reports to which were appended a transcript of all the testimony and all of the exhibits in evidence before him. He found that the valuation fixed by the assessors in 1915 “was not unreasonable or in excess of the fair cash value of the real estate.” He found that the valuation fixed by the assessors in 1916 was $43,370 in excess, of the fair cash value of the real estate.</p> <p>The petitions were heard together by Fox, J., upon the reports of the commissioner and the exhibits and transcript of testimony appended to the report, it having been agreed that the testimony contained in the transcript should be received and considered as evidence at the trial in like manner as if the witnesses were present and so testified, and upon the testimony of Walter S. Crane, assistant treasurer of the petitioner, who was called by it as a witness and testified in substance as follows: “ The item of $29.54 referred to in . . . the commissioner’s reports as representing the cost per patient per week at the McLean Hospital is based upon the actual amount of charges billed out. No payment for office expenses, insurance and things of that sort are included. The whole of the $29.54 was paid for doctors, nurses, etc. There was an actual deficit every year but one.” The judge ordered the petition in the first case dismissed and in the second case found that the petitioner had been over-assessed in the sum of $43,370, ordered the tax abated in the sum of $806,68 and that judgment be entered for the petitioner for that sum and interest, and reported the cases to this court. After the decision reported in 233 Mass. 190, re-scripts issued directing that the cases “ stand for further hearing in the Superior Court.”</p> <p>The cases then were heard together in the Superior Cour^t by Sanderson, J., without a jury, upon the same evidence as that upon which they previously were heard in that court. Rulings by the trial judge upon requests for rulings by the parties are described in the opinion.</p> <p>The judge found in the first case that the fair cash value on April 1, 1915, of the real estate in question was $1,325,000, the fair cash value of the land being $300,000 and the fair cash value of the buildings and the machinery installed therein being $1,025,000, and that the valuation fixed by the assessors was in excess of its fair cash value in the stun of $18,600; and he ordered that the tax assessed upon the property for that year be abated in the stun of $364.56 and that judgment be entered therefor with interest and costs.</p> <p>In the second case the judge found that the fair cash value on April 1,1916, of the real estate in question was $1,325,000, the fair cash value of the land being $300,000 and the fair cash value of the buildings and machinery installed therein being $1,025,000, and that the valuation fixed by the assessors in 1916 was in excess of its fair cash value in the sum of $68,370; and he ordered that the tax assessed upon the property for that year be abated in thé sum of $1,271.68, and that judgment be entered therefor with interest and costs.</p> <p>The petitioner alleged exceptions in both cases.</p>

<p>Equity Pleading and Practice, Demurrer, Decree, Appeal. Equity Jurisdiction, Laches, Statute of limitations, Fraud. Limitations, Statute of. Fraud. Corporation. Evidence, Presumptions and burden of proof. Deed.</p> <p>The record before this court in a suit in equity against three defendants upon an appeal by the plaintiff from a decree dismissing the bill disclosed only the following facts: Each defendant filed a demurrer and no other pleading. The demurrer of one defendant was heard and an order was entered that it be sustained and that “ unless within two weeks leave shall be given to amend, a decree dismissing the bill shall be entered without further order.” Two days after the expiration of the two weeks thus limited, another order was entered that “unless leave to amend the bill in this case is given on or before May 10, 1920, a decree is to be entered dismissing the bill with costs.” On May 7, the plaintiff mailed a motion to amend to the clerk of courts, sending a copy to the judge who had sustained the demurrer. The judge returned the copy to the clerk on May 20. On June 30 the defendants moved for a decree in accordance with the order of the court and, upon the facts above stated, the motion was allowed and a decree was entered dismissing the bill as to all the defendants. Held, that</p> <p>(1) The orders upon the demurrer in legal contemplation meant that the suit would be dismissed if leave to amend was not given in the time specified, and that, until an order was made, based upon proof that such action had not been taken, ■the corut still might deal with the suit;</p> <p>(2) While the better and more satisfactory practice would have been to have entered an interlocutory decree sustaining the demurrer or demurrers, the entry ofjthe final decree in the circumstances imputed a sustaining of the demurrers;</p> <p>(3) The freedom from error of the final decree depended upon whether the order sustaining the demurrer of one of the defendants was right;</p> <p>(4) The merits of the order sustaining the demurrer were open upon the appeal from the final decree.</p> <p>The allegations in a bill in equity by one, who had owned a minority of the shares of the capital stock of a Connecticut corporation and was its secretary and a director, against one, who, with his wife, also a defendant, had owned all of the remaining shares, was a director and the president, treasurer and general manager of the corporation, and against a Massachusetts corporation were that the plaintiff and the two individual defendants organized the Connecticut corporation in 1906, they being the only stockholders; that the corporation owned no property in Connecticut, but did own property in this Commonwealth, where it carried on a business and acquired a valuable good will; that the defendant manager professed to and in fact did act as agent and trustee of the plaintiff’s interest in the corporation and that the plaintiff took no active interest in the management of the corporation, was not familiar with its affairs and merely, without question and whenever asked to by the defendant manager, signed such papers relating to the affairs of the corporation as the defendant manager presented to him; that in 1913 the plant was destroyed by fire; that the defendant manager applied money received from insurance upon the plant to the expenses of the organization and the payment of the capital stock of a new corporation under the laws of this Commonwealth with the same name as the Connecticut corporation, to which he caused to be conveyed under the name of the Connecticut corporation, ■without a vote of all of its stockholders and without notice to the plaintiff, all of the Connecticut corporation’s real estate; that the Massachusetts corporation ■thereupon took possession of the good will and of all other assets of the Connecticut corporation and had continued to enjoy and use them; that the defendant manager then permitted the charter of the Connecticut corporation to lapse, and that it was liquidated and dissolved in 1916; that the plaintiff knew in a general way of the proceedings for the organization of the Massachusetts corporation but ■was informed by the defendant manager that the stockholders of the Connecticut ■corporation would receive shares in the Massachusetts corporation pro rata and that his interest would be properly protected by the defendant manager; that, relying on such assurance, he took no steps and made no inquiries to assure himself of protection until shortly before the suit was begun when, upon inquiry, he learned that the defendant manager had caused all of the stock in the new corporation to be issued to himself, his wife and associates other than the plaintiff and at some time had caused practically all of his own stock to be issued to his wife in order to “ hinder, delay and embarrass ” the plaintiff in enforcing his rights, the wife accepting the transfer with full knowledge of the plaintiff’s equities. The prayers of the bill were alternative, and were for an issuing to the plaintiff of his proportional share of the stock of the Massachusetts corporation, or for an adjudication of the invalidity of the deed from the Connecticut corporation, for a sale and for an accounting. The suit was brought in 1919. On demurrer by the defendants, it was held, that</p> <p>(1) The suit was maintainable against all the defendants by reason of the breach by the defendant manager of his fiduciary relation to the plaintiff, of the transfer of his property to his wife with notice in order to hinder, delay and embarrass the plaintiff in the enforcement of his rights, and of the shares of stock in the defendant corporation standing in the name of the wife of the defendant manager which in equity and good conscience belonged to the plaintiff;</p> <p>(2) The plaintiff did not have a complete and adequate remedy at law;</p> <p>(3) The presumption of fact that the deed by the Connecticut corporation to the Massachusetts corporation was valid, which arose from the fact that it was regular in form and waS under the corporate seal, was not conclusive but could be rebutted by evidence that the deed was unauthorized;</p> <p>(4) In the circumstances, an application by the plaintiff as a stockholder to the Connecticut corporation for redress of his wrongs would have been futile, and therefore it was not a necessary prerequisite to the bringing of the suit;</p> <p>(5) The plaintiff was not barred by loches nor by the statute of limitations;</p> <p>(6) In the circumstances, the fact that the plaintiff was a director and the secretary of the Connecticut corporation did not preclude him as a matter of law from maintaining the suit.</p>

<p>Workmen’s Compensation Act, Presentation of certification, Appeal, Decree, To whom act applies. Superior Court. Agency, Existence of relation, Independent contractor.</p> <p>Where, in a proceeding under the workmen’s compensation act, a dependent claimant, to whom, by a decision of the Industrial Accident Board, compensation has been awarded, presents a certified copy of the decision and the papers in connection therewith to the Superior Court at a date more than ten days after the decision so that, if the parties had been notified as required by G. L. c. 152, § 10, there was no right of appeal under § 11 from any decree that might be entered therein in the Superior Court, the court has jurisdiction to hear a motion by the employer, which is supported by an affidavit that no no\ice was given of the decision of the board to the employer as required by § 10, and which seeks that the case be recommitted to the board for a vacation of the decision and the giving of a new decision and a proper notice thereof; and such motion properly may be granted if the facts are found to be as set out in the affidavit.</p> <p>In workmen’s compensation proceedings, where the employer was a town which had accepted the provisions of St. 1913, c. 807, the town made a motion, such as is described above, which was supported by an affidavit setting out in substance that its attorney of record was not able to attend to the case before the board andjhat another attorney had appeared in his stead, who had made it plain to the board that he was only temporarily acting in his stead and “ did not intend to appear and djd not appear as counsel of record in the matter.” Under the general practice of the courts notices are to be sent to the attorney appearing of record. The motion was granted. The record did not disclose whether the judge heard the case on other evidence than the affidavit. Held, that</p> <p>(1) If there was before the judge other evidence than the affidavit, the decision of the judge was not re viewable;</p> <p>(2) If the motion was heard on the affidavit only, it could not be said as a matter of law that it was granted improperly.</p> <p>A single member of the Industrial Accident Board, to whom was referred a claim under the workmen’s compensation act for compensation to be paid by a town, which had accepted the provisions of St. 1913, c. 807, for injuries resulting in death, stated in his report that "It was agreed . . . [that the employee] received a personal injury in the course of and arising out of his employment ” which resulted in his death, that he " was an employee of B; that B was an independent contractor performing work for the engineers of the fire department of the town; and the member stated the questions before him to be (1) dependency and (2). “whether the claimant’s decedent, as the employee of an independent contractor, performing work for the town, is embraced within the provisions of St. 1913, c. 807,” and he ruled that that statute did not include liability under St. 1911, c. 751, Part III, § 17, and denied compensation. The case again was. referred to him for the hearing of further evidence, when he found and reported that B and the employee were fellow employees of the town and that the claimant was entitled to compensation. The full board adopted such findings and rulings and in accordance therewith a decree was entered in the Superior Court from which the town appealed. Held, that the agreement reported by the single member of the board at the first hearing before him must be construed to mean that B was in general an independent contractor and not that he was such as to the particular work in question.</p> <p>Upon an appeal from a decree of the Superior Court made in accordance with a decision of the Industrial Accident Board affirming and adopting findings of fact by a single member to whom the case had been referred, the question is not, what conclusion this court would have reached upon the evidence, but whether the decision of the board and the decree of the court were rationally possible on the evidence reported and under the law.</p> <p>Upon a claim against a town under the workmen’s compensation act and St. 1913,. c. 807, it appeared that the employee had been furnished to the town by one B, a fire alarm electrician employing several men and doing work both as a jobber and general contractor, who was paid by the town and who paid the employee at a somewhat less rate per day than the town paid him for the employee, but who also paid for the employee’s car fare and dinner; that on the morning of the accident one, who was the captain at the fire department and acting superintendent of the fire alarm system of the town, notified B that the wires were down by reason of a heavy storm and asked him to take care of them; that B, the employee, one other man and the superintendent all engaged in the work and the superintendent gave instructions as to what work should be done and where it should be done. B testified that the superintendent “ had a right to exercise control over him on this-particular job if he saw fit . . . did exercise control over him . . . could tell him just how he wanted the work done . . . could order him to discontinue the work at any time . . . could do the same thing with . . . [the employee] while witness [B] was present . . . has told his [B’s]men the maimer in which he wanted that work done and has told him the manner in which that work was to be done; as, far as he knew the men have always done it.” When the employee was injured, he was climbing a pole to put on a jumper in accordance with a statement made by the superintendent in his hearing, that " if they could put a jumper on the line at that point, they could close the circuit down town.” The single board member • found that the employee when injured was an employee of the town, the full board adopted the finding and a decree was entered accordingly in the Superior-Court. Held, that</p> <p>(1) The fact, that the employee was paid by B and not by the town, while a fact to be considered, was not decisive on thé question whether the relation of master- and servant existed between them;</p> <p>(2) The test to determine whether B or the town was the employer was, who had direction and control of the employee and to whom did he owe obedience in respect to the particular matter at hand;</p> <p>(3) It could not be said that the finding that the town was the employer of' the injured man was wholly without support.</p>

<p>Petition, filed in the Land Court on December 10,1919, for the registration of land in Boston described in the petition as follows: "Northwesterly by Central Street twenty and thirty-six one hundredths feet; easterly by land of President and Fellows of Harvard College forty and one one-hundredths feet; southeasterly by land of Fifty Associates thirty-three one-hundredths of a foot; northeasterly by land of Fifty Associates nineteen and forty-one one-hundredths feet; southeasterly by land of Frederick M. Smith seventeen and forty-five one-hundredths feet; southwesterly in part by land of Mary Alison Hill and in part by land of Robert B. Williams, in all twenty-six and fifty-five one-hundredths feet; southeasterly by land of Robert B. Williams seven and twenty-eight one-hundredths feet; and westerly by land of said Robert B. Williams thirty-nine and eighty-eight one-hundredths feet.” Accompanying the petition was a plan, material features of which are represented on page 424. The land of the petitioner is shaded.</p> <p>The petition was heard in the Land Court by Bams, J. Material findings by him are described in the opinion. His report contained a statement that in 1841 what was agreed to be a copy of the “ Bulfineh plan ” was recorded in the registry of deeds. Ma-. terial features of that plan are represented on page 425.</p> <p>The judge ordered a decree that the title to the land described in the petition should be registered “ subject, as to so much of his land as is within ten feet of the land of the respondents Hill and Williams, to easements for light and air under said deeds from the Broad Street Association to Munroe and another, and to Welsh; ” and the respondents Hill and the Fifty Associates alleged exceptions.</p> <p>The case was argued at the bar in December, 1920, before Rugg, C. J., Braley, Be Courcy, Crosby, & Pierce, JJ., and afterwards was submitted on briefs to all the Justices.</p> <p> </p>

<p>Constitutional Lav), Disposition of property taken by eminent domain and no longer adapted to public uses. Eminent Domain.</p> <p>While legislation, designed or framed to accomplish the ultimate object of causing property to be taken by eminent domain from private persons avowedly for a public use and then placing it in the hands of one or more private persona for their use, would be unconstitutional, legislation which determines that a part of a tract of land, previously taken under statutory authority for park purposes, is, by reason of the lapse of time or changed conditions, no longer needed for such purposes, and which authorizes the alteration of its use and the maintenance of a public dock or wharf thereon and the lease of the land or any part of it for wharves, terminals and all other commercial purposes for periods not exceeding ninety-nine years, is a valid exercise of the power of the General Court under 1 our Constitution.</p> <p>St. 1913, c. 393, as amended by Spec. St. 1917, c. 223, and Spec. St. 1919, c. 79, were a warrantable determination by the General Court that the reason for the public use for which land was taken by the city of Cambridge under the authority of Sts. 1892, c. 341; 1893, c. 337, no longer existed so far as a part thereof called “ The Front” was concerned, and are constitutional.</p> <p>The requirement of Spec. St. 1917, c. 223, that the statute should be accepted by vote of the city council of Cambridge before it should become operative, is valid. The provision of the statutes above described permitting the city council of Cambridge to pass the decisive vote altering the use of “ The Front ” from public to private purposes is not unconstitutional.</p> <p>The income received from rentals under the authority of the statutes above described must be devoted to public uses.</p> <p>The fact, that the statute above described provided for the leasing rather than for the sale of " The Front,” does not make the statute unconstitutional.</p>

Bill in equity, filed in the Supreme Judicial Court on January 5, 1920, by ten taxable inhabitants of the city of Cambridge, and afterwards amended, seeking to enjoin the mayor and city council of Cambridge from raising or expending money, or attempting to raise or expend money, and from incurring obligations or attempting to incur obligations, for the purpose of extending Monroe Street in the circumstances described in the opinion.

<p>Contract, with a declaration in three counts, the material allegations of the second count being described in the opinion and no question being raised in this court upon the first and third ■counts. Writ dated May 22, 1919.</p>

<p>Agency, Existence of relation, Scope of authority. Contract, Validity. Frauds, Statute of. Evidence, Competency.</p> <p>In an action for breach of an alleged agreement to deliver two hundred and fifty thousand yards of cloth, made with a person whom the plaintiff contended was, and the defendant contended was not the defendant’s agent, the plaintiff offered evidence of. a conversation in the defendant’s office in August, 1917, in the presence of the person with whom he made the contract, tending to show that the defendant told the plaintiff in reference to a future need for goods that that person would visit him in Boston and would “ fix him up ” and that he, the defendant, would “ back him up,” that that person did visit the plaintiff in Boston about September 1 and again on September 12 urging him to buy goods and that on the second visit they came to terms. Evidence also was offered that the defendant had stated that the person in question was his New England representative. Held, that the evidence was sufficient to warrant a finding that the person with whom the plaintiff made the contract had authority to act as the defendant’s agent in making the sale to the plaintiff, and that the question of agency should have been submitted to the jury under proper instructions.</p> <p>In the above described action the plaintiff offered to prove that the person whom he contended was the defendant’s agent came to his office and said to him “ We will sell you” certain cloth, two hundred and fifty thousand yards in amount, stating-terms, and that the plaintiff said, “ I will accept your offer and buy those goods, on those terms,” and that thereupon the alleged agent dictated to a stenographer an order for the cloth on the terms stated, addressed to the name under which the defendant conducted his business, that the original order was signed by the plaintiff and that a carbon copy of it was signed by the plaintiff and by the alleged agent of the defendant with his own name after the word "seller.” Held, that</p> <p>(1) Upon the evidence offered, a finding was warranted that there was a com- ' pleted verbal contract between the parties," whereby the plaintiff agreed to purchase and the defendant agreed to sell the cloth mentioned in the declaration;</p> <p>(2) The memorandum was sufficient in form to satisfy the statute of frauds;</p> <p>(3) In legal effect the memorandum was an order in which the plaintiff agreed to purchase the goods in accordance with the terms stated, and the word “ seller ” with the signature following of the person who, the plaintiff contended, was the defendant’s agent, amounted to an acceptance of the order if the agent’s authority was established.</p> <p>An agent authorized to make a sale of merchandise has authority to execute on-behalf of his principal a memorandum sufficient under the statute of frauds.</p> <p>In the above described action, it was held to have been error to order a verdict for the defendant at the close of the plaintiff’s evidence and offer of proof.</p> <p>It also was held that the original memorandum and the carbon copy above referred to were competent evidence.</p>

<p>Contract, Construction, Performance and breach. Action. Practice, Civil, Appeal, New trial.</p> <p>In an action commenced on April 10,1919, for breach of an agreement in writing whereby the defendant agreed to sell a grocery business to the plaintiff and to procure for him a lease of certain premises and to transfer the business “ on or before April 7, 1919 [treated by the parties as April 9J at 3 o’clock p. M., at the office of ” a certain attorney, the judge made a finding of facts “ that the plaintiff was present at the time and place named in the agreement, able, ready and willing to pay the cash called for in the agreement, and that the defendant was not present as' agreed; that defendant never procured the lease called for and never offered the plaintiff the bill of sale called for in said agreement.” The judge found that “ The written instrument contained no stipulation making the time stated of the essence of the contract, and there is nothing in the terms of the contract, in the nature of the property to be conveyed, or in the certain circumstances which requires an inference that the parties intended April 9, 1919, at 3 o’clock P. M., to be the necessary and essential time for carrying the sale into effect.” The judge ruled that “ if the plaintiff refused to accept a bill of sale and a lease of the premises on the tenth day of April, 1919, the defendants are not liable for any damage to the plaintiff.” There were no exceptions taken to these findings and rulings. The judge found for the plaintiff. Held, that</p> <p>(1) It was manifest, by the application of correct rules of law to the facts, that the plaintiff was entitled to recover and that the order for judgment in his favor was right;</p> <p>(2) In an action at law for the breach of a contract to convey or to transfer property the plaintiff makes out a case by showing that he was prepared to carry out his part of the contract according to its terms and that the contract was not performed by the other party within the time specified in the contract;</p> <p>(3) The commencement of the action on April 10, 1919, was not premature;</p> <p>(4) While the defendants showed an error of law in that the judge by ordering judgment for the plaintiff failed to follow the rule of law which he had laid down for his guidance, that rule itself was erroneous and ought not to have been followed, so that the error of law was neutralized by the order for a judgment right upon the facts.</p> <p>A mistake of a judge in failing to follow a rule of law, erroneously adopted, to a decision contrary to the rights of the parties on facts found to be true, does not require a new trial where it is manifest that a just decision, in the light of the governing correct principle of law, has been made.</p>

<p>Tort for injuries received on November 22,1916, when the plaintiff, a child four and one half years old, was knocked down and run over near the corner of Washington and Cowing streets in that part of Boston called West Roxbury by a motor vehicle drawing a concrete mixer owned by the defendant. Writ dated April 10, 1917.</p> <p>In the Superior Court the action was tried before White, J. The material evidence is described in the opinion. At the close of the plaintiff’s evidence, the judge, upon motion by the defendant, ordered a verdict for the defendant and at the request of the parties reported the case for determination by this court upon the stipulation that: “if the ruling and direction was right then judgment is to be entered for the defendant on the verdict; if the case ought to have been submitted to the jury, then judgment is to be entered for the plaintiff and damages assessed in the sum of S3,000.”</p>

<p>Workmen’s Compensation Act, Injuries to which act applies.</p> <p>While a heat prostration received by a teamster in the employment of a coal and wood company who about three o’clock in the afternoon of an extremely hot day in August, after having delivered a load of coal, complained that he did not feel well and was ordered by his employer to put up his team and go home and about half an hour later was found unconscious and several hours later died as a result of the heat prostration, is an injury received in the course of his employment it is not one arising out of the employment within the meaning of the workmen’s compensation act.</p>

<p>Tort for personal injuries sustained by the breaking of a defective railing constructed around the roof of a veranda of a house alleged to be owned by the defendants, William and Laura Ceppi, and rented to and occupied by the father of the plaintiff with his family, including the plaintiff. Writ dated March 15, 1917.</p> <p>In the Superior Court the action was tried before Raymond, J. The material evidence is described in the opinion. The jury returned a verdict for the defendants; and the plaintiff alleged exceptions. ,</p>

<p>Two actions of contract, each upon a policy of insurance in the Massachusetts standard form against loss by fire. Writs dated April 1, 1914.</p>

<p>Carrier, Of goods. Evidence, Presumptions and burden of proof.</p> <p>In the declaration in an action against a railroad corporation which had received goods for transportation to the plaintiff, it was alleged that the defendant did not care for the goods and deliver them to the plaintiff but conducted itself so negligently that they were lost and destroyed. The answer was a general denial. At the trial, an employee of the defendant testified that upon presentation of the original “delivery check” by one who drove a team bearing the name of an expressman who was authorized to receive the goods for the plaintiff, he delivered them to that teamster, who signed a name on the delivery check. The expressman testified that he had not received the goods and that no one bearing the name that was signed to the delivery check was in his employ. Subject to an exception by the plaintiff, the judge instructed the jury that the burden was on the plaintiff to prove by a fair preponderance of the evidence that the goods were not delivered to his authorized expressman. The jury found for the defendant. Held, that</p> <p>(1) The burden was on the plaintiff to prove non-delivery of the goods to him or to his authorized agent;</p> <p>(2) The fact, that some evidence was offered by the plaintiff that the goods were not delivered to him or his authorized agent, did not place the burden on the defendant of showing that the merchandise was so delivered;</p> <p>(3) The instruction excepted to was correct.</p>

<p>Practice, Civil, Exceptions, Findings by judge. Attorney at Law. Release. Evidence, Competency.</p> <p>In an action by a woman against an attorney at law to recover a balance alleged to be due to the plaintiff of money received by the attorney in payment of a judgment in an action in which he represented the plaintiff, there was evidence that the attorney was paid $10,449.43 in full payment of the judgment; that subsequently, by his authority in his office, the defendant’s brother told the plaintiff that she could have a check for $5,199.22 when she signed a release of all demands running to the defendant which also was shown her; that she was told that the ' charge for the defendant’s services was $5,000, to which she objected; that about two weeks thereafter the plaintiff called again at the defendant’s office, executed the release and received the check. The plaintiff testified that she had made an agreement with the defendant that his charge would not exceed ten per cent of the amount recovered. The trial judge found that, when the release was executed, the relation of attorney and client existed between the parties; that there was no agreement for a charge for services as alleged by the plaintiff and that a fair charge for the defendant’s services was $2,500; and ruled that the defendant, by requiring the plaintiff to give him the release as a condition precedent to his paying to her money which he held and was in duty bound to pay her, committed a breach of his fiduciary obligations to her and that the release was not fairly and honestly obtained and was of no force and effect. Held, that</p> <p>(1) This court Éad no jurisdiction to review the finding of fact by the trial judge, based upon sufficient evidence to warrant the finding, that when the release was executed the relation of attorney and client existed between the parties;</p> <p>(2) As the plaintiff’s attorney, the defendant could not in the proper performance of his duty insist that before she received any of the money due she must agree to release him,from all demands;</p> <p>(3) As a matter of fact, a finding was warranted that the execution and delivery of the release was made a condition precedent to delivery of the check for $5,199.22, and that the release was not fairly and honestly obtained;</p> <p>(4) Evidence relating to what was said in the defendant’s office when the release was signed plainly was admissible.</p>

<p>Broker, Commission. Practice, Civil, Appeal.</p> <p>In an actionin the Municipal Court of the City of Boston against a husband and wife by a real estate broker for a commission for procuring a customer for certain real estate, where the evidence was conflicting as to whether the wife, who signed her own name and that of her husband to an agreement of sale containing a clause agreeing to pay the plaintiff a commission, was authorized to sign the agreement for her husband or knew the intention of the agreement, and whether she signed relying on misrepresentations by the plaintiff, the trial judge refused to rule that upon the evidence the plaintiff was entitled to recover, found for the defendants and reported the case to the Appellate Division. Upon an appeal from an order dismissing the report, it was held, that no question of law was open on the record.</p>

Tort for personal injuries sustained by the plaintiff on February 21, 1917, at the subway station of the defendant at Park Street in Boston, alleged to. have been caused by being pushed off a car of the defendant which she was attempting to leave. Writ dated April 26, 1917. In the Superior Court the action was tried before Keating, J. The material evidence is described in the opinion. The jury found for the plaintiff in the sum of $2,000.

<p>Contract with a declaration in two counts, the first count being upon a paroi agreement to recover a balance of $655 with interest, alleged to be due for labor and materials furnished in the construction of the Codman Square Theatre in Boston, and the second count being upon an account annexed to recover $150, alleged to be due for extra labor and materials furnished in the construction of the same building. Writ in the Municipal Court of the City of Boston dated February 10, 1919.</p> <p>The defendants filed a declaration in set-off, described in the opinion.</p> <p>Upon removal to the Superior Court, the action was tried before Morton, J. Material evidence, including evidence offered by the defendants and excluded by the judge subject to the defendants’ exception, is described in the opinion. The jury returned a verdict for the plaintiffs in the sum of $876.08; and the defendants alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on August 12,1920, against William R. Trask and John F. McKay to enjoin the enforcement of a judgment recovered by the defendant Trask against the plaintiff and his wife in an action at law. Material allegations in the bill are described in the opinion.</p> <p>The defendant J. F. McKay filed a special appearance and, without waiving his special appearance, filed a demurrer and an answer. The defendant W. R. Trask filed a demurrer which, as-amended, alleged that the bill “ sets forth no facts entitling the plaintiff to relief in equity.”</p> <p>The suit was heard by Pierce, J., upon the demurrer of the defendant W. R. Trask and the demurrer was sustained. Later the-suit was heard by Jenney, J., and, the plaintiff not desiring to amend the bill, a final decree was entered by his order dismissing-the bill. The plaintiff appealed.</p>

Tort for personal injuries received by the plaintiff when a motor car in which she was riding with her husband and which was being driven by him was run into by a motor car driven by the defendant. Writ dated November 14,1916. In the Superior Court, the action was heard by Hall, J., without a jury. Material evidence and findings of the judge are described in the opinion. The judge found for the plaintiff in the sum of $600; and the defendant alleged exceptions.

<p>Negligence, Motor vehicle.</p> <p>At the trial of an action for personal injuries alleged to have been received when the plaintiff was run into by a motor car driven by an employee of the defendant, there was evidence tending to show that the plaintiff was a watchman in a freight yard; that in the evening as it was growing dark he was walking in a passageway leading from a public way to the rear of a freight house when he observed at a distance down a driveway and beside a lumber yard a motor car which he did not think belonged there; that nearer him he observed the defendant’s motor car; that he started to go to the farther motor car to see what it was doing there; that, as he passed the defendant’s car, either a man who was seated within it or a man who was alongside it told him that the car farther down the driveway “ belonged to the lumberman,” whereupon, satisfied, the plaintiff turned and was retracing his steps when he was struck in the bade; that, almost immediately after the plaintiff was given the information by the person at or in the defendant’s car, it was backed around toward the plaintiff. The jury took a view of the premises from which they might have found that no other vehicle could have struck the plaintiff without first colliding with the defendant’s car. The driver of the defendant’s car testified that “ he was looking back over the side all the time ” without seeing the plaintiff. Held, that the questions, whether the plaintiff was in the exercise of due care and whether the defendant’s employee was negligent, were for the jury.</p>

<p>Contract, Implied. Evidence, Competency. Guardian. Minor. Practice, Civil, Parties.</p> <p>At the hearing by a judge without a jury of an action by an administrator with a will annexed for money alleged to have been had and received by the defendant to the plaintiff’s use, it appeared that the defendant, who was described in the writ only in his individual capacity, had been guardian of one of the legatees under the will who was a minor, and that the defendant had received from the plaintiff $1,400, a sum $1.56 in excess of what was due the ward, that $15.96 of this was retained by him in payment of an account between himself and the plaintiff, and that the balance was actually received by him as guardian for the legatee. Held, that a finding was warranted that there was no overpayment to the guardian.</p> <p>At the hearing of the action above described, an assignment by another legatee to a third person, which was honored by the plaintiff and upon which a sum was paid by the plaintiff which proportionately diminished the amount due to the ward of the defendant, properly was admitted in evidence.</p> <p>At the hearing above described, the final account of the defendant as guardian for his ward, which, after the ward became of age and before the bringing of the action, was allowed by the Probate Court, properly was admitted in evidence.</p> <p>A minor during guardianship, and not his guardian, is the proper party in actions concerning his title or estate; and, after his minority terminates and he comes into possession of personal property formerly in the possession of his guardian, one who claims title thereto in whole or in part must sue him and not his former guardian.</p>

Bill in equity, filed in the Superior Court on March 20,1920, and afterwards amended, against the town of Dedham and one David H. Livingstone, the superintendent of streets of the town, seeking to enjoin the defendants from damaging the plaintiff’s premises by blasting in a nearby quarry and for damages. The town demurred and the demurrer was sustained. The suit then was referred to a master before whom it proceeded against the defendant superintendent óf streets only.

<p>Contract for breach of an alleged agreement by the defendant to examine the title to real estate on Kendrick Street in Newton, which the plaintiff had purchased, and to arrange the transfer of the title to the plaintiff free of incumbrances except a specified' mortgage. Writ dated August 28, 1919.</p> <p>In the Superior Court, the action was heard by McLaughlin, J., without a jury.</p> <p>One who had been a bookkeeper for the defendant at the time of the transaction in question testified that while in the employ of the defendant he examined some titles but did mostly office work and took orders from customers; that a slip of paper shown him was written by him in 1915 in the ordinary course of his business and it showed that the plaintiff wanted a title insurance policy in the amount of $2,000, that the work was to be completed on June 13 and the plaintiff notified, when the company was ready to pass papers, by telephone instead of by letter; that if he had been asked for a written report he would have written “ letter ” instead of “telephone” on the slip; and that the paper did not refresh his recollection of the conversation he had had with the plaintiff although there was a standard conversation for every client. This paper was offered as a part of the defendant’s system of keeping books. The judge, subject to an exception by the defendant, excluded it as being evidence itself and ruled that it could be used only to refresh the witness’ recollection. The paper was as follows:</p> <p> </p> <p>One Charles H. Hodge, called by the plaintiff, testified that he was in the real estate business about one and one half or two miles from Kendrick Street, that he had been in the real estate business for twenty years and in that time had built and sold one hundred houses and had also bought and sold land in several places; that in Brighton, about a mile from the plaintiff’s property, he had bought land and built fifteen houses; that he had been a director and on the investment committee of the Brighton Co-operative Bank since it was organized in 1911 and had examined for the bank one piece of property in Newton upon which a mortgage was given; that at one time he lived in Watertown very near the Newton line and had occasion to go back and forth, driving by the property involved in this action, a great many times, although the bulk of his business had been done in Newton; that he had bought and sold two houses on Algonquin Road, which is about one half mile from Kendrick Street and about a mile from the plaintiff’s land; that values in the place he built and around Kendrick Street are about the same, and that in Newton they are a little higher than in Brighton; that, within a quarter of a mile or so, there had been no particular development on a large scale for a great many years; that he was familiar with the plaintiff’s property and had examined it at the request of the plaintiff.</p> <p>The judge having ruled that he might testify as an expert, the witness then testified that the fair market value of the land in question in July, 1915,. “ without the right of way was $30,000, and that although $8,000 for the land was a very good buy it would be a better bargain without the right of way; that subject to the right of way the property was worth $1,500 less regardless whether the valuation of the land at $30,000 was correct; and that his reason for this statement was that the right of way might result in a one way street if the plaintiff should divide the land into house lots; that the value of the land was about ten cents a square foot, so that a strip alone being three hundred and forty-nine by twenty feet would be worth $698.</p>

<p>Contract for breach of the agreement made by letters described in the opinion. Writ dated April 17,1920.</p> <p>In the Superior Court, the action was tried before Bishop, J.. Material evidence is described in the opinion. At the close of the plaintiff’s evidence, the defendant rested and the plaintiff moved that a verdict be ordered for it. The motion was denied. A motion by the defendant for a verdict in its favor was allowed and. the verdict was ordered. The plaintiff alleged exceptions.</p>

<p>Two actions of tobt ob contbact with a declaration in five counts, all for the same cause of action, the first four counts in each action being in tort for trespass, assault and battery and false imprisonment, false arrest, and slander, respectively. In the fifth count in each action it was alleged in substance that the two plaintiffs, husband and wife, were upon application by the husband assigned to a room in the Hotel Langham, of which the defendant George H. Page (hereinafter called the defendant) was proprietor, and were escorted by an employee of the defendant to a room on the fifth floor of the hotel and were given the key to the room, “ and that the plaintiff and his wife became guests of said management, and became entitled to an exclusive right to the use of said room, free from annoyance, discomfort, insult or injury; ” that notwithstanding their exclusive right to the room as guests of the defendant innkeeper, on or about the morning of November 19, 1918, the defendant, personally and by his servants, agents and employees, together with a police officer there present at the instigation and by the procurement of the defendant, wrongfully and by force entered the sleeping apartment of the plaintiffs without cause, and disturbed their rest and quiet, intruded upon their privacy, and assaulted them and restrained them of their liberty against their will and to their great humiliation, and publicly and maliciously in the presence of divers persons used abusive, threatening and slanderous language of and concerning the plaintiffs accusing them of the crime of having had illicit sexual intercourse and of being in the hotel contrary to the provisions of St. 1918, c. 259, all by words substantially as follows: “What do you mean being here with this woman? — You don’t belong in this bedroom with this woman and if you don’t get out, I am going to get a police officer and put you out. — I intend to put you out of here — Tell us, who is the little girl you have with yoii. — May be she is registered and he (meaning the plaintiff) has slipped into the room with her over night. — ” and so injured the character of the plaintiffs and caused them great humiliation and mental anguish and anxiety; and “that by this breach of duty to the plaintiff while a guest of the defendant innkeeper your plaintiff has suffered great damage as in his writs alleged. And this count in contract and the above counts in tort are for one arid the same cause of action.”</p> <p>The actions were tried together before Hall, J. Material evidence and exceptions saved by the defendant are described in the opinion. At the close of the evidence the defendant moved that the plaintiffs be compelled to elect as to whether their cases would go to the jury on the counts in contract or on the counts in tort. The judge thereupon required the plaintiffs to elect and they elected to proceed on the counts in contract. The defendant thereupon requested the judge to instruct the jury that the plaintiffs could not recover on their counts in contract for any damages resulting from words spoken, the slander, false imprisonment, assault and battery or for the humiliation, but could only recover for the value of the room. The request was refused.</p> <p>Special questions were put to the jury at the request of the defendant in both actions, which, with the answers were as follows:</p> <p>“ 1. What portion of the damages assessed by the jury, if any, is assessed for words spoken, if any, imputing a crime.” The jury answered, in the action by the husband, “$300,” and in the action by the wife, “$700.”</p> <p>“la. Were Leo Erewen and wife registered on the Hotel Register of the Langham Hotel on November 16, 1918? ” The jury answered, “ Yes.”</p> <p>In the action of the husband, the jury were asked special questions and answered as follows:</p> <p>“ 1. What portion of the damages assessed by the jury, if any, is assessed for assault?” The jury answered, “$100.”</p> <p>“ 2. What portion of the damages assessed by the jury, if any, is assessed for false imprisonment? ” The jury answered, “ $100/’</p> <p>The jury found generally for the plaintiffs, in the action by the husband in the sum of $500 and in that of the wife in the sum of $1,000; and the defendants alleged exceptions.</p>

<p>Marriage and Divorce. Evidence, Presumptions and burden of proof. Exceptions.</p> <p>At the trial of a libel by a wife for a divorce on the ground of desertion continued for three consecutive years, the libellant testified, among other things, that on the date of the alleged desertion "the libellee got cross about nothing at all; they had an argument; and he got out. He never offered to come back to her nor invited her to come back to him. He has always lmown where she lived and he could have had opportunity enough if he had wanted to support her, if he wished to.” In response to a letter from the libellee written eight days after the alleged desertion, accusing her of being unfair to him and of lying to him and demanding that she account for her whereabouts on a holiday just past, the libellant immediately replied by a letter stating among other things that the libellee had said many terrible things to her which she would never forgive, that it probably would be better that they live apart “ so you go your way and I will go mine, and I shall never trouble you and you need never trouble me. ... I am decided in this matter as I have thought it over and I feel that things will never be any different between us, and I know it.” About fourteen months later she again wrote him: “ I am perfectly satisfied as things are now.” Held, that</p> <p>(1) The letters of the libellant to the libellee did not as a matter of law prove that the separation was with the libellant’s consent;</p> <p>(2) A finding for the libellant and an ordering of a decree nisi were warranted.</p>

<p>Contract for the breach of an oral contract for the construction of certain machine parts for a machine embodying an invention belonging to the plaintiff, the declaration being in three counts, the first and the third of which were upon the express contract, and the second for $1,600 alleged to have been had and received by the defendant to the plaintiff’s use. Writ dated June 14, 1917.</p>

<p>Insurance, Fire. Reference and Referee. Words, " Bias.”</p> <p>At the trial of an action by a corporation upon a policy of insurance against loss by fire in the Massachusetts standard form, it appeared that the plaintiff’s claim under the provisions of the policy had been referred to referees but that the plaintiff refused to be bound by their award and based its alleged right of recovery upon a contention that the award was “ so grossly and palpably below the actual loss as to be fraudulent, biased and prejudiced,” and upon the allegation that it had offered to resubmit the question of loss to other referees but that the defendant had refused so to do and always had insisted upon the validity of-the award. At the trial the jury found in answer to special questions that the award was not made in good faith and that the board was not properly constituted by reason of bias on the part of at least two of its members, also answered affirmatively a question, whether the authorized representative of the plaintiff at the hearings before the referees during the course of those proceedings became aware of “any bias, prejudice or fraud on the part of a majority of the referees” and elected “not to repudiate the referees then and there but to wait to see if the outcome of the reference satisfied him, intending to abide by the award if it pleased him and to repudiate it if it did not please him;” and found generally for the plaintiff in a sum in excess of the award. Held, that</p> <p>(1) By going forward with the proceedings before the referees after knowledge of “any bias, prejudice or fraud on the part of a majority of the referees,” the plaintiff was precluded from complaining of the award;</p> <p>(2) The plaintiff should be given leave upon terms to amend its declaration into a claim for the amount awarded by the referees, and there should be a new trial upon that claim; and if the amendment was not made in thirty days, judgment should be entered for the defendants.</p>

<p>Contract, originally begun as a suit in equity filed in the Superior Court on July 5, 1904, to reach and apply under R. L. c. 159, § 3, cl. 7, in satisfaction of a debt alleged to be owed to the plaintiff from the defendant, equitable assets of the defendant Miller in the possession of other defendants, and on May 25, 1908, after the decision of this court reported in 190 Mass. 285, that the suit could not be maintained in equity because of the lack of evidence of any such equitable assets, amended into an action at law with a declaration in two counts, the first count being upon an account annexed and the second count being for breach of an express contract for the construction by the defendant of a coal pocket in Chelsea.</p> <p>The suit in equity had been referred to and heard by a master, and, on November 13, 1909, after the amendment into an action at law, the action was referred to the same man to be heard by him as an auditor. On September 24, 1914, an order was entered by direction of Wait, J., which recited that, it appearing that the auditor, as master when the action was a suit in equity, “heard the parties and their evidence at great length, and filed a report as master stating his findings of fact on the issues involved; that this report was confirmed by this court and that confirmation affirmed by the Supreme Judicial Court; that the cause was held improperly before this court in equity and has been transferred to the law side of this court; that no new issues are involved; that the cause has been sent to . . . [the same man] as auditor; that the evidence presented to him as master was taken stenographically and is now accessible to him and to the parties; that unnecessary repetition of the testimony or arguments ought not to be permitted; it is ordered that said auditor may in his discretion, without further hearing of evidence, make as his auditor’s report the whole or any part of his earlier report as master and that he shall not be required to hear anew any evidence offered before him when sitting as master. Any party may by objection or request raise any question of law by him deémed proper in regard to the admission or application of evidence, or otherwise, as though the witness were present and testifying, or the ruling were made at the hearing before the auditor at which such objection or request is made.”</p> <p>The auditor reviewed his own report formerly made as master and adopted his findings then made with changes now immaterial, neither considering anew a stenographic copy of the evidence taken before him when master nor hearing further evidence.</p> <p>After motions by the defendant to recommit and to discharge the report of the auditor had been denied, the action was tried before Sanderson, J., upon the report and other evidence. Proceedings at that trial as to the report and material evidence are described in the opinion.</p> <p>Upon the return of the jury to the court room with their verdict, the judge asked the foreman," In making up the verdict did you credit the defendant with the $1,500 paid to Mr. Flinn? ” and the jury answered, “That was already accounted for in the auditor’s report.” The judge further asked, “ You allowed it as the auditor did? ” and the foreman answered, “ As the auditor did.” The verdict then was recorded for the plaintiff in the sum of $2,926.30; and the defendant alleged exceptions.</p> <p>By St. 1914, c. 576, § 2, R. L. c. 165, § 55, was amended to read as follows: “When a civil action is at issue, the Supreme Judicial Court or the Superior Court, in its discretion, and a police, district or municipal court, if both parties assent thereto in writing, may appoint one or more auditors to hear the parties, examine their vouchers and evidence, state accounts and report upon such matters therein as may be ordered by the court. The auditor’s findings of fact shall be prima facie evidence upon such matters only as are embraced in the order; but the court at the trial shall exclude any finding of fact which appears in the report to be based upon an erroneous opinion of law, or upon evidence which is inadmissible. Whenever the auditor makes a ruling as to the admissibility of evidence and objection is taken thereto he shall, if requested so to do, make a statement of such ruling in his report. The auditor shall not make any finding of fact which depends upon the decision of a question of law, unless he makes alternate findings or states in his report the view of the law upon which his finding depends, together with such subsidiary facts as will enable the court to pass upon the question.”</p> <p>St. 1914, c. 576, § 6, provides that the statute “shall apply to all cases hereafter referred to auditors.”</p>

Contract or tort, originally begun by an action of contract against the defendants’ testator, Nathaniel J. Rust. Writ dated August 29, 1916.

Petition, filed in the Supreme Judicial Court on December 30, 1920,by a citizen of Haverhill for a writ of mandamus directing the respondents, who comprised the school committee of Haverhill, to admit to the public schools three minor children of the petitioner.

Petition, filed on February 9, 1921, for a writ of habeas corpus directing the release of the petitioner from imprisonment in the Massachusetts Reformatory at Concord.

Two actions of tort under R. L. c. 211, § 8, for three fourths of the value of property alleged to have been taken away from the plaintiffs’ stores in Boston just before midnight on September 9, 1919, and on the morning of September 10, just after midnight. Writs in the Municipal Court of the City of Boston dated, respectively, November 18, 1919, and February 3, 1920.

<p>Petition under St. 1909, c. 490, Part IV, § 20, filed in the Probate Court on June 15,1921, by the executor of the will of Charles L. Willoughby, late of BrooHine, for the abatement of an additional inheritance tax in the amount of $7,022.54, assessed upon the right of the residuary legatee to the residue of the estate and paid under protest by the petitioner under the provisions of the fourteenth paragraph of the will.</p> <p>The fourteenth paragraph of the will was as follows: “It is my desire that all inheritance and other taxes on the legacies, devises or distributive shares of my estate, if any, under the laws of the United States, or of any State thereof, now existing, or which may hereafter come into effect, shall be paid by my Executor out of the corpus of my estate. It is my desire, (subject to the approval of my said Executor as hereinafter provided) that such inheritance taxes shall be ascertained immediately after my decease; and I hereby direct that if the persons who are then authorized by law to levy such a tax or taxes shall determine that the respective rights and interests created by this Will are presently subject to the payment of such a tax or taxes, and shall fix and levy the same accordingly, then my said Executor may at its option forthwith pay the same as levied out of the corpus of my estate, as aforesaid, without questioning the propriety of such determination and levy, and the decision of my said Executor and such payment thereof by it shall be binding and conclusive upon all my heirs, legatees, devisees and beneficiaries under any of the provisions of this will.”</p> <p>The petitioner’s contention was that certain deductions, described in the opinion, should have been allowed by the Tax Commissioner before the assessment of the tax. On February 26,1920, the petitioner had paid a tax which had been assessed after an allowance of the deductions claimed. On April 1, 1920, the additional assessment was made by the commissioner on the basis described in the opinion, which the petitioner paid under protest and then brought this petition. The petition was heard in the Probate Court by Flint, J., upon an agreed statement of facts, and was denied. The petitioner appealed.</p> <p>The case was argued at the bar in January, 1921, before Rugg, C. J., Braley, Crosby, Pierce, & Jenney, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>Three petitions, filed in the Land Court, the first two on May 5, and the third on October 21, .1920. In the first petition the trustees in bankruptcy of the New England Fireproof Construction Company sought to have certain memoranda of incumbrances upon certificates of title of thirteen lots of registered land in Brookline cancelled. In the second petition they sought a decree directing the Tremont Trust Company, which held a mortgage upon each of the lots, registered as first incumbrances, to deliver to them duplicates certificates of title. In the third petition one Edward Levy, who claimed title to the lots by reason of a sale on execution described- in the opinion, sought to have issued to him a certificate of title free from all incumbrances.</p> <p>The incumbrances described in the memoranda, which the petitioners in the first petition sought to have cancelled, were described therein as follows: (a) attachment, Paul Mazzuchelli et al.; (b) attachment, William C. McConnell Co.; (c) attachment, Edison Portland Cement Co.; (d) attachment, Paul A. Mazzuchelli et al.; (e) copy of decree, Edmund A. Whitman, Receiver; (f) sheriff’s deed, Edward Levy.</p> <p>The supporting allegations of the first petition were, in substance, that the suit in which attachment (a) was made was returnable to the Suffolk Superior Court on the first Monday of December, 1917, and had never been entered in said court; that the attachments (b) and (c) were made within four months of the filing of a bill in equity by the Berger Manufacturing Company, a creditor of the New England Fireproof Construction Company, asking, among other things, that a receiver of the said New England Fireproof Construction Company be appointed; that in those proceedings a receiver was appointed; that because of those proceedings the attachments (b) and (c), under the provisions of R. L. c. 167, §§ 126, 127, were not incumbrances on the property; that the attachment (d) was made in a proceeding instituted within four months of the filing of the above described bill in equity and by virtue of those proceedings was dissolved and later continued for the benefit of the estate of the New England Fireproof Construction Company, and not for the benefit of the attaching plaintiff; that subsequently the action in which said attachment was made was reduced to judgment, execution issued, and a sheriff’s sale of the real estate attached was had; and that therefore the incumbrance (f) was invalid; that Edmund A. Whitman was the receiver appointed in the suit in equity and filed a copy of the decree appointing him which is the incumbrance (e), and that, because of the bankruptcy of the New England Fireproof Construction Company and the election and qualification of the petitioners as trustees, the copy of decree should be cancelled.</p> <p>Edward Levy demurred to the first petition, and also filed an answer.</p> <p>The petitions were heard in the Land Court by Danis, J., upon an agreed statement of facts. Material facts are described in the opinion.</p> <p>The petitioners, in requests numbered 1 to 6, asked that each of the memoranda of incumbrances described in their petitions be cancelled, and for a seventh ruling that, “ If the sheriff’s deed to the respondent Edward Levy is valid, the petitioners should be allowed to redeem upon terms.” '</p> <p>By order of the judge the demurrer of the respondent Levy to the first petition of the trustees in bankruptcy of the New England Fireproof Construction Company was overruled, the first six of the petitioner’s requests for rulings were granted, the seventh request was denied, and the petition was allowed. The second petition of the trustees was denied, the judge finding that the certificates of title were in the possession of Levy, and Levy was ordered to deliver them to the trustees.- Levy’s petition for registration was denied. Levy alone appealed.</p> <p>R. L. c. 167, § 126 (see now G. L. c. 223, § 130), reads as follows: " An attachment of property on mesne process shall be dissolved by the appointment by any court of competent jurisdiction in the Commonwealth of a receiver to take possession of such-property; if the bill or petition praying for the appointment of such receiver is filed in said court within four months after such attachment was made, unless the court at any time, in its discretion, continues such attachment for the benefit of the estate of the defendant. In such case, the court may authorize the receiver to prosecute the action upon which the attachment was made for the benefit of the estate of the defendant and may make further orders to enable the receiver to recover for the benefit of the estate of the defendant the amount due to the plaintiff in the original action.”</p>

Petition, filed on May 7, 1920, for a writ of prohibition restraining the respondents from continuing to hear charges against the petitioner, a veteran within the meaning of St. 1919, c. 150, § 6, employed by the city of Boston as superintendent of the Boston almshouse and hospital. The petition was heard by Pierce, J., upon an offer by the petitioner of proof of facts, which, without objection by the respondents, were found by the single justice to be admitted and proved.

<p>Widow, Allowance. Marriage and, Divorce. Estoppel.</p> <p>A married woman, while living apart from her husband for a cause which had been adjudged by a Probate Court of this Commonwealth to be justifiable, learned that her husband, who had gone to the State of Illinois without the purpose of obtaining a divorce there, without service of any process having been made upon her had procured a divorce there which was valid by the laws of that State until impeached and revoked by its courts but which was not binding upon courts of other States. Thereafter the woman refrained from applying to the Illinois court for a review and annulment of the proceedings there and, considering herself “ free,” married another man who afterwards left her. Subsequently the first husband died and the woman sought a widow’s allowance in the Probate Court of this Commonwealth where his estate was in the course of administration. Held, that the woman was estopped by her second marriage, entered into by her with knowledge of the facts and circumstances attending the divorce procured by her first husband, from denying the validity of that divorce and from procuring an allowance as her first husband’s widow.</p>

<p>Tort by the administrator of the estate of Judson B. Crosby, with a declaration in four counts, of which only the first, a count for the causing of the death of the plaintiff’s intestate on April 6, 1919, is material. Writ dated May 13, 1920.</p> <p>The answer contained only a general denial and an allegation that, at the time or times mentioned in the declaration, “ the plaintiff was not in exercise of due care.”</p> <p>In the Superior Court the action was tried before Aiken, C. J. Material evidence and rulings by the Chief Justice are described in the opinion. There was a verdict for the plaintiff on the first count in the sum of $5,000; and the defendant alleged exceptions.</p>

<p>Contract upon a contract in writing providing that for two years beginning August 1, 1914, the plaintiff should “ furnish to ” the defendants “ all teams required by them for the delivery of their goods, each team to be equipped with a canvas,” and that the defendants should pay therefor $6 per day for double teams and $4 per day for single teams, the defendants also agreeing to notify the plaintiff before six o’clock each afternoon as to the number of teams required for the following day, and that they would hire no outside teams while the plaintiff could supply them. Writ dated November 7, 1914.</p> <p>In the Superior Court the action was referred to an arfditor. The auditor’s findings on the question of damages were as follows:— “Should the court find that as a matter of law the plaintiff is entitled to recover and that it is entitled to recover damages from the time it discontinued its work up to the expiration of the contract, I find as a fact that the contract had one year, eight months and twenty days to run and that deducting from that period of time Sundays and holidays and other days when horses and caravans would not be used by reason of weather conditions, the plaintiff would have been called upon to supply horses and caravans for approximately four hundred and fifty days. I find that the general average of horses and wagons (caravans and tip-carts) used was four and one half per day and that the profit which the plaintiff would make was $1 per wagon, making a total profit of $2,025. To this sum should be added the loss resulting from the sale of the two Cliest horses, making a total loss of $2,165, which sum the plaintiff is entitled to recover as damages.”</p> <p>Other materialfindings of the auditor are described in the opinion. The action was heard by Keating, J., without a jury, upon the auditor’s report as the only evidence. He found for the plaintiff, in the sum of $2,733.75, “ consisting of $2,025, the sum found due the plaintiff in one of the auditor’s findings, with interest from the date of the writ; ” and reported the action to this court for determination.</p>

<p>Negligence, Gross.</p> <p>At the trial of an action by a woman for personal injuries received when the plaintiff fell through an open trap door which opened to a stairway connecting the kitchen of a tenement occupied by the plaintiff on the second floor of a building with an undertaking establishment of the defendant on the first floor, there was evidence tending to show that the trap door was closed and barred previous to the day of the accident; that, when closed, it was flush with the floor and entirely covered the opening, which was near to the outside wall of the kitchen; that there was a window directly over the opening; that the opening was guarded by a fence enclosing it on all sides except about six or eight inches at the entrance to the stairway and except the entrance itself, which was about twenty-three inches wide; that on the morning of the accident the defendant said to the plaintiff that, if “ she was going to be out in the afternoon,” he would oil the kitchen floor and asked her to unfasten the trap door so that he could get up stairs; that she did so and, during her absence, the defendant opened the trap door, entered the tenement, "oiled the floor and left without closing the trap door; that the plaintiff, returning when the kitchen was very dark, without making a light walked across the kitchen to pull down the shade at the window, fell through the opening and was injured. There was uncontradicted evidence that whatever service was performed by the defendantin the plaintiff’s kitchen was gratuitous. Held, that</p> <p>(1) There was evidence warranting a finding that the defendant was grossly negligent;</p> <p>(2) Aside from St. 1914, c. 553, there was evidence warranting a finding that the plaintiff was in the exercise of due care.</p>

Petition, filed in the Probate Court for the County of Essex on June 24, 1920, for the revocation of a decree of that court appointing the respondent trustee under the will of John C. Hastings, late of Somersworth in the State of New Hampshire. The petition was heard in the Probate Court by White, J. The circumstances in which the hearing proceeded and material findings and rulings by the judge are described in the opinion.

<p>Police, District and Municipal Courts, Appeal. Warehouseman. Commonwealth.</p> <p>G. L. c. 231, § 98, is not applicable to an appeal taken by the Commonwealth from a judgment of a police, district or municipal court in an action brought upon a bond of a warehouseman under G. L. c. 105, §§ 1, 3.</p> <p>The Commonwealth has a right to appeal to the Superior Court from a judgment of a police, district or municipal court in an action against a warehouseman upon his bond under G. L. c. 105, §§ 1, 3, without filing an'appeal bond.</p>

<p>Contract or tort, by David Glassman and Barney Glassman, copartners doing business under the firm name and style of D. Glassman and Company, with a declaration as amended in eight counts, hereinafter described. Writ dated March 28, 1916.</p> <p>In the first count of the declaration as amended, the plaintiffs alleged in substance that on or about October 1,1915, “ they made and entered into a written mortgage contract with the defendant in the sum of $5,000 covering live stock, horses, wagons, milk route and other property, . . . and at the execution and delivery of said mortgage, the defendant agreed to provide the plaintiffs from time to time upon demand with such sum or sums as they would require to properly stock their dairy farm, and to maintain and prosecute the business of the delivery of milk; said amount under any circumstances, however, not to exceed the amount of $5,000;” that relying upon such contract the plaintiffs made and executed the mortgage; that the defendant “ neglected and refused, and still neglects and refuses to carry out the agreements hereinbefore set forth ” and that, in consequence of his failure so to do, the plaintiffs were unable to continue the dairy farm and to prosecute and maintain their business, and had suffered thereby great loss and damage.</p> <p>In the second count the plaintiffs alleged that on or about December 9, 1915, “ they made and executed to the said defendant a mortgage in the sum of $3,900 upon the defendant’s agreement that the said defendant would, from time to time, advance to the plaintiffs the aforesaid sum as demanded, with which to increase the business they were then engaged in and to carry on and maintain the same,” and that the defendant refused and neglected to perform his agreement.</p> <p>The allegations of the third count were that on or about Decernber 9,1915, the plaintiffs “ made and executed to the said defendant a mortgage in the sum of $3,305 upon the defendant’s agreement that the said defendant would, from time to time, advance to the plaintiffs the aforesaid sum as demanded, with which to increase the business they were then engaged in and to carry on and maintain the same. That said plaintiffs demanded of said defendant the aforesaid stun at times when the same was necessary and that the defendant, despite his agreement, refused and neglected and still neglects and refuses to perform his said agreement, and furnish said money all to the plaintiffs’ great damage.”</p> <p>In the fourth count the plaintiffs recited that the three mortgages above described were given by the plaintiffs pursuant to the agreement of the defendant “ to advance them money from time to time as required,” and that “ the plaintiffs have often requested the defendant to advance the money as agreed to at the time when said mortgages were executed and delivered but that the defendant has refused and neglected, and still refuses and neglects so to do, but has, in violation of his contract with the said plaintiffs, and before default in either, made entry upon all the property described in the respective mortgages, foreclosed, advertised and sold the same and has devoted the proceeds thereof to his own use, and has in all other respects violated the terms, agreements and conditions upon which the plaintiffs executed and 'delivered to said defendant the aforesaid mortgages. In consequence of the acts, doings and omissions of the said defendant the said plaintiffs have been deprived of their business, property, good will and all things in any way pertaining thereto; that they have been deprived of the income therefrom and the benefit and advantages accruing thereunder, all to their great damage.”</p> <p>In the fifth count the plaintiffs alleged a breach of the agreement to supply money to them, without any allegation as to the foreclosure of the mortgage.</p> <p>The sixth count was demurred to, ore terms, and the demurrer sustained by Wait, J.</p> <p>In the seventh count the plaintiffs alleged “ that after the execution and delivery of the mortgage for $3,305 . . . the defendant neglected, refused and always neglected and refused to make payments to the plaintiffs under the terms, agreements and conditions thereof. That the plaintiffs at all times were ready, willing and did perform each and every covenant and agreement on their part to be kept and performed, and did pay to the defendant the instalments upon the principal of said mortgage and interest thereon, as therein required. The plaintiffs further allege that sometime in March, 1918, while there existed no default therein that the defendant instituted proceedings of foreclosure and did sell the personal property therein described, depriving the plaintiffs of their enjoyment in the use and possession thereof. That by reason of the said sale under the said foreclosure upon the defendant’s claim of right, the aforesaid property was sacrificed and the plaintiffs deprived of the possession theretofore conducted by them of which said property was an essential part. That by reason of said defendant’s illegal act, the plaintiffs have suffered great damage.”</p> <p>In the eighth count the plaintiffs alleged “ that in their dealings and relations with the defendant as hereinbefore expressed in the other counts, the plaintiffs declare that they have paid to the defendant large sums of money in excess of the amount advanced by the said defendant on account of said various respective mortgages j and that at the time of the alleged foreclosure, taking possession of and the depriving of the plaintiffs of the use thereof, the defendant was indebted to the plaintiffs in a large sum to wit the sum of $800.”</p> <p>All counts were alleged to be “ for one and the same cause of action.”</p> <p>The action was tried before Morton, J. Material evidence, introduced and offered by the plaintiffs, is described in the opinion. By order of the judge, the jury found for the defendant; and the plaintiffs alleged exceptions.</p>

Bill in equity, filed in the Superior Court on September 27, 1920,. to establish a resulting trust in real estate standing in the name of the defendant, Annie Sigel, the wife of the plaintiff. In the Superior Court the suit was heard by Sisk, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. Material evidence is described in the opinion. A decree was entered dismissing the bill without costs; and the plaintiff appealed.

<p>Contract, What constitutes, Consideration-</p> <p>A merchant gave to a manufacturer orally an order for one hundred and seventy-. four dozen boys’ wash suits and five sets of samples, of which the manufacturer made a memorandum upon one of his printed order blanks containing the following provisions: “ This order is given and accepted subject to a limit of credit and determination at any time by us.” The order was not signed by the merchant. The samples were delivered and paid for. Upon shipment of seventy-two dozen suits, the merchant refused to accept the goods, contending that there was no binding contract between the parties. Held, that</p> <p>(1) Under the provisions above quoted, the manufacturer had a right to determine the contract at any time, so that the agreement was not mutually binding and no enforceable contract was made;</p> <p>(2) The delivery, acceptance and payment for the sample suits did not constitute a consideration which made the agreement enforceable as a whole;</p> <p>(3) It was not necessary to consider the defence of the statute of frauds.</p>

<p>Tort for personal injuries suffered by the plaintiff while a trespasser upon land of the Mexican Oil Company upon which the defendants were constructing oil tank foundations. Writ dated June 4, 1917.</p>

<p>Tax, On income. Corporation, Stock dividend. Words, “Accumulated profits.”</p> <p>A stock dividend declared by a foreign corporation solely by reason of an appreciation in the inventory value of land and buildings owned by it is taxable as income under St. 1916, c. 269, § 2 (b), and St. 1918, c. 252.</p>

<p>Trust, Construction. Probate Court, Jurisdiction.</p> <p>A provision of a will as to a trust fund was that, on the death of a daughter of the testator, the trust properly should be divided “ share and share alike between my said sons ... [naming three sons] and in case of the death of either of them before their sister, then any surviving child or children or widow of either of them.” The sons all died before the daughter and at her death there were living a daughter of the first son, the widow and three children of the second son, the widow of the third son and a child of the third son by a former marriage. Held, that if nothing more appeared, each such widow was entitled to divide, share and share alike, with the child or children of her husband, one third of the trust property.</p> <p>Under G. L. c. 215, § 6, the Probate Court has jurisdiction, upon a petition by a trustee under a will for instructions as to the persons to whom and the manner and the proportions in which he should make distribution of the property held by him in trust, to determine the legal effects of assignments and conveyances made by the beneficiaries of the trust among themselves.</p> <p>At the death of the daughter of the testator of the will above described, there were surviving only a daughter of the first son, who was the executrix of and residuary legatee under the will of her father; the widow and three children of the second son; the widow of the third son, who was the executrix of and sole legatee under his will, and a child of the third son by a former marriage. The third son after his father’s death had given to the first son an assignment of all his interest in his father’s estate as collateral security for the payment of a note previously given. After the death of the second son and before the death of the testator’s daughter, the widow and children of the second son had conveyed all their interest in the trust estate to the third son and the daughter of the first son. Held, that</p> <p>(1) The interest of. the third son having become divested by his death before the death of his sister, his conveyance to the first son was ineffectual to pass title and the one third interest, which would have been his had he survived his sister, should be divided share and share alike between his widow and his son;</p> <p>(2) Since the widow and children of the second son survived the daughter of the testator, the interest which they had conveyed after the death of the second son was not divested, and the one third interest, which would have been the second son’s had he survived his sister, should be divided between the daughter of the first son and the executrix of the will of the third son;</p> <p>(3) The division of the trust estate should be: one half to the daughter of the first son, one sixth to the son of the third son, one sixth to the widow of the third son, and one sixth to the executrix of the will of the third son;</p> <p>(4) It was not the duty of the trustee to make partition of or to sell the real estate, title to it having vested in the beneficiaries and their assignees and grantees on the death of the daughter of the testator;</p> <p>(5) A title to certain real estate which the trustee had had registered in his name as trustee should be transferred by him to those entitled to it.</p>