Volume 244 — Massachusetts Reports

<p>Petition, filed in the Probate Court for the county of Suffolk on January 18, 1917, under St. 1906, c. 129, for a decree that the respondent had deserted the petitioner, her husband, and that he was living apart from her for justifiable cause.</p> <p>In the Probate Court, by order of George, J., a decree granting the petition was entered on January 8, 1918, and the respondent appealed. In the Supreme Judicial Court the case was referred to a master. Material findings by the master are described in the petition. Exceptions by the respondent to the master’s report were heard by Jenney, J., by whose order there were entered an interlocutory decree overruling the exceptions and confirming the report and on April 3, 1922, a final decree affirming the decree of the Probate Court and remanding the case to that court for further proceedings. The respondent appealed.</p> <p>On December 5, 1922, while the appeal was under consideration by this court, there was filed an agreement of the counsel for the parties that the petitioner had “ died about 5 a.m. on December 1, 1922.”</p> <p>The case was submitted to the court on briefs in June, 1922, and afterwards was submitted on briefs to all the Justices except Jenney, J.</p>

<p>Sale, Warranty. Damages, For breach of contract. Witness, Expert. Evidence, Opinion: expert.</p> <p>At the trial of an action of contract brought by a wholesale dealer in candy against a candy manufacturer for breach of a warranty of merchantability in the sale of a certain candy called “peach buds,” it appeared that the candy was sold by sample and was shipped in December, was received three days later, and was paid for five days after receipt. There was evidence tending to show that the plaintiff delivered the candy to his retail customers in the usual way, that, upon its being displayed by them according to the custom of the trade, it became sticky, ran together and was wholly unsalable within a very few days, in consequence of which the plaintiff was obliged to take it all back from his customers, and that notification of the facts was sent by the plaintiff shortly thereafter. Held, that</p> <p>(1) Under G. L. c. 106, § 18, cl. c, there was an implied warranty that the goods should be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample;</p> <p>(2) It might have been inferred from all the evidence that the tendency to become sticky would not be observed upon a reasonable examination of the sample of such goods as were the subject of this transaction, nor on inspection of the goods themselves as and when they were delivered to the plaintiff;</p> <p>(3) It might have been inferred that by implication there was made known to the defendant as a manufacturer and seller that the particular purpose of the pinchase was resale to retail candy merchants, in which case G. L. c. 106, § 17, cl. 1, was applicable;</p> <p>(4) An instruction in substance that there was an implied warranty that the candy was of a quality and fitness suitable for resale and distribution among retail dealers and would remain merchantable under the usual conditions attending proper exposure for retail sale for a length of time reasonable for candy of that nature, was proper;</p> <p>(5) The evidence warranted a finding that there were innate defects in the goods and that their subsequent condition was not due to the usual risks incident to sound merchandise of the quality which was the subject of sale, and upon such a finding, a verdict for the plaintiff was warranted;</p> <p>(6) The plaintiff was not bound to point out the specific defect in the candy; it was enough to show its unfitness for resale;</p> <p>(7) The provisions of G. L. c. 106, § 17, cl. 4, had no pertinency to the facts here disclosed;</p> <p>(8) All the candy having been resold by the plaintiff and returned, his lost profits were not speculative, and they were recoverable;</p> <p>(9) The plaintiff’s expenses rightly incurred in connection with the trans- . action were proper for consideration in assessing his damages;</p> <p>(10) The qualifications of an expert witness, called by the plaintiff to testify as to the color and composition of the candy, were to be determined by the trial judge in the exercise of sound judicial discretion, which did not appear to have been abused.</p>

<p>Contract for the value of professional services as attorneys at law alleged to have been rendered to the defendant by the plaintiffs, copartners under the name and style, Eaton and Chandler. Writ dated July 22, 1921.</p> <p>The original writ and declaration and the plaintiffs’ motion to amend the writ are described in the opinion. The motion was heard by Irwin, J., and was allowed. Notice thereof was given by the clerk of courts to the statutory agent of the executor of the will of Edward F. Searles and to his attorneys of record in the Superior Court. Thereupon, on February 6 and 7, 1922, special appearances were filed on behalf of the defendant, Arthur T. Walker, as an individual, “for the following purposes and none other, — (1) of objecting to the jurisdiction for want of service upon Arthur T. Walker, and (2) without waiving such objection to jurisdiction, for the purpose of objecting to the plaintiffs’ amended writ and declaration for non-joinder of Lewis L. Delafield as defendant jointly with said Arthur T. Walker, and (3) without waiving such objections to the jurisdiction and to the non-joinder of said Delafield, for the purpose of removing said cause to the District Court of the United States.” On February 8-11, 1922, there were filed by such attorneys the petition for removal to the District Court of the United States for the District of Massachusetts and bond, described in the opinion, a motion to dismiss the action “for the reason that no service of process herein has been made upon the said Arthur T. Walker as defendant in said amended writ,” which motion was filed “without waiving” the petition and bond for removal; and a plea in abatement, which specifically stated that it was filed without a waiver of the petition and bond for removal and the motion to dismiss and which was based on a failure to join as defendant one Lewis L. Delafield of the city, county and State of New York.</p> <p>The petition for removal was heard by Irwin, J., and he, being of opinion that the allowance or denial of the petition ought to be determined by this court before any further proceedings in the Superior Court, reported the case to this court for its determination as to whether or not the petition for removal should be allowed or denied.</p> <p>Section 28, as amended, and § 29 of the Judicial Code, 36 U. S. Sts. at Large, 1094,1095; 38 U. S. Sts. at Large, 278, are as follows:</p> <p>“Section 28. Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which ,the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any State court, may be removed into the district cotut of the United States for the proper ■district by the defendant or defendants therein, being non-residents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district cotut of the United States for the proper district. And where a suit is now pending, or may hereafter- be brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other defendants, to the State court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any district cotut, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said State court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: Provided, That no case arising under an Act entitled 'An Act relating to the liability of common carriers by railroad to their employees in certain cases/ approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States. And provided further, That no suit brought in any State court of competent jurisdiction against a railroad company, or other* corporation, or person, engaged in and carrying on the business of a common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, as amended June twenty-ninth, nineteen hundred and six, April thirteenth, nineteen hundred and eight, February twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000.</p> <p>“ Section 29. Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient ■surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same. The said copy being entered within said thirty days as aforesaid in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause, and the ■cause shall then proceed in the same manner as if it had been originally commenced in the said district court.”</p>

<p>Contract with a declaration in two counts, the first count being for breaches of a covenant against incumbrances contained in a deed to one Mary Iíelleher, a predecessor in title to the plaintiff, and the second count being for breaches of a covenant of warranty to defend title contained in the same deed. Writ dated December 14, 1915.</p> <p>The defendant originally named in the writ was Susan A. Downing. During the pendency of the action, her death was suggested and Irving G. Downing, the executor of her will, was admitted to defend the action.</p> <p>The action came on for trial before Dubuque, J. Before the jury was empaneled counsel for the defendant raised the questions of law, whether the action could be maintained at all on the first count and whether it was prematurely brought as to the second count. After argument of counsel on the questions of law involved and after offer of proof of the facts described in the opinion, a jury was empaneled and the trial judge, subject to exceptions by the plaintiff, instructed the jury as follows: “As a matter of law the plaintiff cannot succeed in his action on the first count of his declaration, for a breach of the covenant against incumbrances, against the present defendant, and as to the second count for breach of warranty, his action is prematurely brought; wherefore, I direct a verdict for the defendant on both counts.” A verdict for the defendant was returned as directed; and the judge reported the case to this court “for decision on the above questions of law.” If his rulings were correct, judgment was to be entered for the defendant, and, if wrong, the action was to stand for trial.</p>

<p>Building Permit. Newton. Constitutional Law, Police power. Municipal Corporations, By-laws and ordinances, Building permit.</p> <p>Actual excavation for the cellar of a proposed building constitutes work on the “erection” and "construction” of abuilding within the provisions of a municipal ordinance requiring that before the “erection, construction or alteration of any building or parts of any building” certain detailed descriptions, copies and drawings shall be submitted to the building commissioner of the municipality.</p> <p>G. L. c. 143, § 3, is a constitutional exercise of the police power.</p> <p>An ordinance of the city of Newton providing that “Before the erection, construction or alteration of any building or part of any building . . . the owner or lessee, or agent of either, or the architect or builder employed by such owner ... in connection with the proposed erection . . . shall . . . submit to the commissioner a detailed description of the location, purpose and construction of' the proposed structure or work, on proper blanks to be furnished by the commissioner, and full and complete copies of the plans of such proposed work and such structural detailed drawings as the commissioner may require,” had a rational connection with public welfare and was within the scope of G. L. c. 143, § 3.</p> <p>A further provision of the same ordinance of the city of Newton, in substance that it “shall be the duty of the commissioner to approve or reject any plans filed with him . . . within a reasonable time, and . . . within ten days and no work shall be commenced until a permit is issued. ...” providing no general rule, either to guide the landowner in selecting materials or designs for construction of his proposed building, or to govern the commissioner in reaching a determination whether to approve or reject the plans, and containing no provision for review by the courts or other higher authority of the absolute discretion thus attempted to be vested in the commissioner to prevent the landowner from erecting a proper building by refusing to issue a permit, is not within the scope of G. L. c. 143, § 3, and is invalid.</p>

<p>Tort by the administrator of the estate of Annie E. Putnam, late of Chelsea, originally against Joseph B. Smith of Somerville, with a declaration in two counts, the first count being for conscious suffering caused to, and the second for the death of, the plaintiff’s intestate, alleged to have resulted on May 16,1920, from negligent operation of an automobile by the defendant. Writ dated July 1, 1920.</p> <p>During the pendency of the action, the defendant died and Henry W. Savage, executor of his will, was admitted as a party defendant and was permitted to file a further answer alleging “that the cause of action set forth in the plaintiff’s declaration in so far as it seeks to recover damages for the death of the plaintiff’s intestate is not a cause of action which survives the death of the defendant either at common law or under the statute, and that, therefore, the plaintiff is not now entitled to maintain this cause of action so far as it deals with damages for thé death of the plaintiff’s intestate.”</p> <p>The action was tried in the Superior Court before Thayer, J. At the close of the evidence, the defendant moved that a verdict be ordered in his favor on the second count. The judge denied the motion. The defendant also requested a ruling that no action could be maintained on the second count of the plaintiff’s declaration on account of the death of the defendant and because the action for damages under the death statute does not survive the death of the person whose negligence is responsible for the death. The judge submitted both counts to the jury without instruction as to the question thus raised by the defendant and upon an agreement of counsel that in the event of a verdict for the plaintiff the case was to be reported on the question of the plaintiff’s right to recover on the second count. A verdict was returned for the plaintiff on the first count for conscious suffering in the sum of $1,000, and on the second count for the death in the sum of $3,000; and the judge reported the action for determination by this court of the question, whether the action under the second count for damages for the death of the plaintiff’s intestate survived the death of the defendant. If the action so far as the second count was concerned did not survive the death of the original defendant, judgment was to be entered for the plaintiff on the verdict rendered on the first count only; but if it did survive the death of the defendant, then judgment was to be entered for the plaintiff on the verdict on both counts.</p>

<p>Evidence, Competency, Hearsay, Admission. Practice, Civil, Request for rulings, Exception. Negligence, In use of highway.</p> <p>A physician testifying at the trial of an action brought by a woman for personal injuries resulting from a collision on a highway, used notes on a "call slip” to refresh his recollection and stated in direct examination that the plaintiff suffered from a concussion of the spine. On cross-examination he was asked whether the memorandum mentioned “anything about the spine.” He answered, “In making notes, I cannot fill out every word on the small piece of paper, a small piece of paper like this, and I always abbreviate. Naturally concussion would be of the spine; it could not be of the leg or arm. She was thrown on her back, and concussion —” Th,e defendant’s counsel then interposed: “I ask your Honor to strike out that, I ask to have ‘She was thrown on her back’ excluded.” The trial judge replied, “No; I will not strike it out.” The defendant excepted. Held, that</p> <p>(1) It could have been found that the witness was testifying from his recollection of what he saw upon his examination of the plaintiff, and that his statement was based upon his personal knowledge derived from her appearance and condition and was not merely hearsay;</p> <p>(2) The answer was not objected to as unresponsive and therefore the exception to it could not be sustained on that ground;</p> <p>(3) The exception must be overruled.</p> <p>At the trial of an action by a woman for personal injuries, a witness, not qualified as an expert, in testifying as to the effect of the injuries upon the plaintiff, may be asked “What did you notice about her [the plaintiff’s] appearance as to pain? ” and in answer may state the result of his observation, although it involves in some measure his opinion or judgment.</p> <p>A police officer, called to the scene of a collision between an automobile and a horse and wagon which was the basis for an action of tort for personal injuries, in relating at the trial of that action a conversation which he then had with the defendant, stated, “He said he was at fault; that the snow had covered his wind shield so he could not see the road, and that was the reason he got on the left hand side. He also said he would go down and make things all right the next day.” The defendant moved to strike out the words “He also said he would go down and make things all right the next day,” and the motion was denied. Held, that the motion properly was denied, the entire statement being evidence of a statement in the nature of an admission by the defendant, and the portion objected to not being in its setting an offer of compromise.</p> <p>No exception will be sustained to the refusal of a judge to grant requests for rulings based upon fragmentary portions of the evidence.</p> <p>An exception not argued is treated as waived.</p>

<p>Contract, with a declaration as amended upon an account annexed for $110, alleged to be due as rent of an apartment for the months of May and June, 1921, at $55 per month. Writ in the Municipal Court of the City of Boston dated June 30, 1921.</p> <p>In his answer, as amended, the defendant, besides setting up a general denial and an allegation of payment, alleged an eviction, and that he had occupied the premises “as a result and in consequence of the false and fraudulent representations made to him by the plaintiff, the plaintiff well knowing that said representations were untrue and the plaintiff intending that the defendant should act thereon; that the defendant was ignorant of the truthfulness of said representations and in sole reliance upon the same occupied said premises and has been greatly damaged and now the defendant owes the plaintiff nothing.” The defendant also alleged “that the plaintiff agreed to make certain repairs upon the premises referred to in the plaintiff’s declaration and to put the said premises into a particular condition and style; that the plaintiff has not made the repairs and put the premises into the condition and style as aforesaid. Wherefore the defendant now wishes to recoup in damages on account of the plaintiff’s failure to perform the said agreement which caused the defendant to move to more suitable quarters.”</p> <p>Material evidence at the trial in the Municipal Court is described in the opinion. The defendant asked for the following rulings:</p> <p>"1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“2. If the landlord has falsely represented to the tenant that the premises are untenantable [szV], and after learning that they are not, the tenant has vacated them, the landlord cannot recover rent.</p> <p>“3. If the landlord falsely represents that the house is in good condition, the tenant is entitled to abandon the premises and refuse to pay the rent.</p> <p>“4. Where it is the duty of the landlord to make repairs, a tenant is not entitled to abandon the premises so as to relieve himself from liability for rent without first putting the lessor in default by affording him an opportunity to remedy the defect.</p> <p>“5. If the landlord fails to repair after notice, the tenant may abandon the premises, and is not liable for rent thereafter.</p> <p>“6. If the tenant enters the premises before the time stipulated for the repairs to be made, there is no waiver on his part, and rent is not recoverable, if he elects to abandon the contract.”</p> <p>“9. There is not sufficient evidence to show that the plaintiff did all he was required to do under the terms of the tenancy, wherefore the plaintiff is not entitled to recover.</p> <p>“ 10. It was the custom for the plaintiff to go to the premises occupied by the defendant to collect the rent, and as the plaintiff did not go to the said premises and attempt to collect the rent, it was not the duty of the defendant to seek out the plaintiff and pay the rent, wherefore the plaintiff is not entitled to recover.</p> <p>“11. The burden of proof is upon the plaintiff to show that he went to the premises occupied by the defendant to collect the rent from the defendant, and that the defendant refused to pay same, otherwise the plaintiff is not entitled to recover.</p> <p>“12. If the defendant gave the plaintiff an opportunity to repair the premises and the plaintiff did not do so, then the finding should be for the defendant.</p> <p>“ 13. If the reason that the defendant remained on the premises was due to promises made by the plaintiff that he would repair the premises, and the plaintiff finally stated that he would not make such repairs, then defendant was entitled to abandon the premises and the plaintiff is not entitled to recover.</p> <p>" 14. If the defendant remained on the premises in reliance of the continual promises made by the plaintiff that he would ‘fix up’ the premises for the defendant, then no tenancy in fact ever existed, and the defendant was not required to give notice of his intention to vacate the premises, and the plaintiff is not entitled to recover.</p> <p>“ 15. The plaintiff is not entitled to recover on all the evidence and the pleadings presented in this case.</p> <p>“ 16. The burden of proof is on the plaintiff to show by a fair preponderance of .the evidence that the rent for the month of April was not paid by the defendant to the plaintiff.</p> <p>“ 17. The receipt of rent for the month of April raises a prima facie presumption that the rent for the previous months had been paid by the defendant.</p> <p>“18. The burden is on the plaintiff to overcome the prima facie presumption concerning the payment of the rent for the month of April.”</p> <p>The above rulings were refused. The judge found for the plaintiff in the sum of $104, and at the request of the defendant reported the action to the Appellate Division, who ordered the report dismissed. The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of tort. The declaration in the second action, as amended, was in two counts, the first count alleging personal injuries sustained by the plaintiff by reason of negligence of the defendant in making bread which contained a piece of tin. The second count is set out below'. The first action was by the husband of the plaintiff in the second action for consequential damages. Writs dated January 6, 1921.</p> <p>The second count of the amended declaration in the second action was as follows: “The plaintiff says that the defendant was for a long time prior to the twenty-second day of July, 1919, a corporation engaged in the business of manufacturing and selling bread in Lynn in said county and Commonwealth aforesaid and that the defendant was and is now a corporation engaged in said business in said Lynn; that on or about the said date the defendant manufactured and sold certain bread among certain retail dealers of bread in said Lynn for the purpose of selling the same to the consumers of said bread; that the plaintiff, through her daughter bought a loaf of said bread at one of the said stores for the purpose of using the same for food; that the plaintiff on or about the last mentioned date while eating a piece of thé said bread bought by her said agent of one Stacey, who was one of the said retail dealers of said bread; was severely injured on account of coming in contact with a piece of metal which was contained in said bread; that for many years prior to the said twenty-second day of July, 1919, the said defendant always represented to the consumers of said bread and to the public generally that the bread made and sold by it was wholespme, fit for consumption as food and free from noxious or foreign substances or bodies; that the said representations were made as of the defendant’s own knowledge, whereas in truth and in fact, such representations were not true but were false, in that the said bread eaten by the plaintiff contained a piece of metal; that such representations were intended by the defendant to be made impliedly to all persons who should lawfully eat as food the bread of the defendant, including the plaintiff herein; that the plaintiff herein relied upon said representations of the defendant in eating the said bread, and as a result thereof was seriously injured because of the untruthfulness of the said representations that the said bread was fit for consumption as food and contained nothing unfit for use as food.”</p> <p>In the Superior Court, the actions were tried together before Dubuque, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that verdicts be ordered in its favor upon both counts in both actions. The motion was granted as to the first counts and denied as to the second counts. The jury found for the plaintiff on the second count in the first action in the sum of $175, and for the plaintiff on the second count in the second action in the sum of $1,250; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice, Appeal, Master. Trust, What constitutes.</p> <p>Upon an appeal from a final decree in a suit in equity founded upon a report by a master which did not contain a report of the evidence before him, the master’s findings must stand unless upon the face of the report they are inconsistent with ! each other or are contradictory and plainly wrong.</p> <p>A manufacturer of leather, in return for letters of credit given to him by a firm of bankers, delivered to the bankers an instrument signed by him, entitled a “trust receipt,” in which he agreed, with regard to certain hides described therein, “to hold said goods in trust for them, and as their property, with liberty to sell the same for their account or to manufacture and remanufacture the same without cost or expense to them, and” he also agreed “to keep said goods, and the manufactured product and proceeds thereof, whether in the form of money or bills receivable, or accounts, separate and capable of identification as their property, and hand the proceeds to them to apply . . . under the terms of” the letter of credit “and for the payment of any other indebtedness of” the manufacturer to the bankers. The instrument also entitled the bankers “at any time [To] cancel this trust and take possession of said goods or the manufactured product or of the proceeds of such of the same as may have then been sold, wherever the said goods or proceeds may then be found, and in the event of any suspension ... or failure [on the part of the manufacturer] . . . or of the non-fulfillment of any obligation ... all obligations, acceptances, indebtedness and liabilities whatsoever shall thereupon (with or without notice) at their option mature and become due and payable. ...” Held, that</p> <p>(1) The instrument was valid and established between the parties a relation fiduciary in its nature;</p> <p>(2) The instrument gave to the manufacturer no right to deduct from the “proceeds” of the manufactured product expense incurred by him for legal services in prosecuting against the federal government a claim for damages resulting from the cancellation of a contract for the sale of the manufactured, product for war purposes.</p> <p>The printing of a document in a brief before this court does not bring that document before the court if it does not appear in the record.</p> <p>The manufacturer, after delivering the trust receipt above described to the bankers and proceeding with the manufacturing of the hides into leather, became financially embarrassed, a meeting of his creditors was called, and, without an assignment being made or bankruptcy proceedings being instituted, a committee of the creditors was permitted to take over the entire management of his business. The bankers took possession of the hides and partly manufactured leather under the trust receipt and with the acquiescence of the committee of creditors, who entered into an agreement under which the bankers were to furnish the money to complete the manufacture into leather of the hides covered by the trust receipts, the leather was to be sold and the bankers were to be reimbursed for such advances out of the proceeds, and the bankers then would be paid the balance of such proceeds up to the amount of their advances to the manufacturer. This agreement was carried out, and there remained due to the bankers from the manufacturer the sum of $74,971. The bankers agreed with the manufacturer that they would waive claim to a cash dividend in respect to the claim due them “provided that all the leather, or proceeds of same, or claims based thereon, applicable to the” trust receipt were “applied in liquidation of” their claim, the bankers “to be covered for all . . . [their] outlay of every nature including legal expenses” and any balance to be returned to the manufacturer. The manufacturer assented. The manufacturer afterwards recovered $75,000 from the federal government for loss by reason of leather not delivered to the government because of a cancellation of contract by it. Held, that</p> <p>(1) The contractual relation between the parties created by the letter of credit and the trust receipt was not affected by the appointment of the creditors’ committee and the carrying on of the business by it with the assent of the manufacturer;</p> <p>(2) The bankers were entitled to have applied to their claim the entire sum received from the federal government by the manufacturer, so far as necessary to settle their claim;</p> <p>(3) The bankers were entitled to recover for reasonable and necessary expenses incurred by them in the employment of counsel.</p>

<p>Contract for $308.72, with a declaration in two counts, the first for money had and received by the defendant to the use of the plaintiff, and the second for a balance alleged to be due from stockbrokerage transactions. Writ in the Municipal Court of the City of Boston dated May 16, 1921.</p> <p>At the trial in the Municipal Court, besides the evidence described in the opinion, it appeared that William R. Fitzgerald and Charles G. Galbo made an agreement in writing and under seal, dated March 31,1921, which, exclusive of the in testimonium clause, signature and seals, was as follows:</p> <p>“For and in consideration of the sum of three thousand dollars to me paid by Charles G. Galbo, of Newton, in the County of Middlesex and Commonwealth of Massachusetts, I, William R. Fitzgerald, of Boston, in the County of Suffolk, and Commonwealth of Massachusetts, do hereby give, grant, bargain, sell and convey unto the said Charles G. Galbo all the fixtures, safes and furniture owned by me and situated on the first floor of the building formerly occupied by me at No. 83 and No. 85 State Street in said Boston.</p> <p>“And I hereby covenant that the same are free from all encumbrances, and that I have good right to sell the same.</p> <p>“And the said Fitzgerald also transfers to the said Galbo certain accounts, a schedule of which accounts is hereto annexed and marked ‘A.’ All payments that have been made up to the date hereof on said accounts are to belong to and remain the property of said Fitzgerald, but all future payments on said accounts from the date hereof are to belong to and be the property of the said Charles G. Galbo. And the said Galbo agrees to carry out the terms, delivery and conditions of the contracts as contained in schedule ‘A’ with the several purchasers, and agrees to hold and save harmless and indemnify the said William R. Fitzgerald for and on account of any and all liability for the delivery of any of the stock called for under said schedule marked ‘A,’ and to carry out with the respective customers all the terms and conditions contained in said contracts and included in the schedule marked ‘A.’ ”</p> <p>Other material evidence is described in the opinion. At the close of the evidence, the defendant asked for the following rulings:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.”</p> <p>“10. In order to hold the defendant liable, it is necessary for the plaintiff to prove that there was an agreement between himself and his original debtor, William R. Fitzgerald & Co. and the defendant company, and when the plaintiff cannot prove such an agreement he cannot recover in this action.</p> <p>“11. In order to recover in this action it is incumbent upon the plaintiff to show that he released William R. Fitzgerald & Company from his obligation under the contract between the plaintiff and Fitzgerald, and since the plaintiff admits he has not released Fitzgerald & Co., he cannot recover in an action of this kind.</p> <p>“12. In the absence of an agreement between the plaintiff and the defendant, whereby the defendant would perform the contract to William R. Fitzgerald & Co., the plaintiff cannot recover.”</p> <p>The foregoing requests for rulings were denied. The trial judge found in substance that, while there was no express contract between the plaintiff, the defendant and Fitzgerald, that the defendant should be substituted for Fitzgerald in respect to his obligation to the plaintiff and that Fitzgerald should be released therefrom, there was an implied contract to that effect, and found for the plaintiff in the sum- of $308.72. At the request of the defendant the action was reported to the Appellate Division, who ordered the report dismissed. The defendant appealed.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk on July 6, 1921, for discharge, from guardianship under which the petitioner was placed on March 31, 1915, as a spendthrift.</p> <p>In the Probate Court, the petition was heard by Prest, J., a stenographer having been appointed under G. L. c. 215, § 18, to take the evidence. Material evidence and findings by the judge are described in the opinion. A decree was entered dismissing the petition; and the petitioner appealed.</p>

<p>Contract, What constitutes.</p> <p>At the trial of an action for breach of an alleged contract whereby the defendant agreed to employ the plaintiff as a salesman for a period of one year, there was. in evidence correspondence between the plaintiff in Atlanta, Georgia, and the defendant’s sales manager in Boston. It appeared that in reply to a letter from the plaintiff, the manager wrote, “We will be ready for you just as soon as you can arrange to come. We will try out the first year on” a certain basis. The plaintiff replied, referring to a previous conversation when he had said that unless he could make “$7,000 this year it would be hardly worth . . . [hisj while moving” and inquiring whether “the bonus” was computed on the basis of all sales in his territory or only on his personal sales. The manager replied stating the territory which would be assigned to the plaintiff “for this year” and arrangements as to salesmen under him. The plaintiff replied that he-would make arrangements to be in Boston as near March 1 “as possible,” to which the manager replied, “I am glad that you have decided to come with us. We will assign you the best territory available,” describing it. Held, that</p> <p>(1) While it appeared that some of the details were to be settled, the fact that the plaintiff was to be hired for a period of a year was not questioned in the correspondence, and there was evidence of a contract for a year’s employment;</p> <p>(2) The trial judge properly refused to rule that as a matter of law there was no contract made between the plaintiff and the defendant for the period of one year beginning March 1.</p>

<p>Two actions of contract, each upon a certificate of death benefit issued by the defendant therein to Alexis Lapointe. The plaintiffs in each action were two sisters of the decedent. Writs dated July 10, 1920.</p> <p>In each action, the defendant interpleaded, and Albina Leveillee was summoned to defend as claimant to the funds in the hands of the defendant.</p> <p>In the Superior Court, the actions were heard together by Hammond, J., without a jury. Material facts and requests by the plaintiff for rulings, are described in the opinion. The judge ruled that “the clause which by St. 1913, c. 617, was inserted in St. 1911, c. 628, § 6, by way of substitution is to be construed liberally and is intended to give to a member of a fraternal beneficiary society the right to designate any person as a beneficiary in case (1) no previously designated beneficiaries are then in existence and (2) no husband, wife, betrothed, child, child by legal adoption, parent, parent by legal adoption, or persons dependent upon the member is then living;” that “so far as concerns the giving of this right to travel outside the restricted class to which a member would otherwise be confined, it is of no consequence why there may be a failure of previously designated beneficiaries, whether because of death or because of a void designation or because no designation has ever been made; ” that the plaintiffs were not entitled to recover and that the claimant was entitled to judgment. In both actions there were findings for the claimant, in the first in the sum of $496 and interest, and in the second in the sum of $100 and interest; and the plaintiffs alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p> Workmen’s Compensation Act. </p> <p>An action of tort for personal injuries caused to an employee of a subcontractor in the construction of a building by negligence of the general contractor or of his servants or agents cannot be maintained under G. L. c. 152, § 15, against such general contractor by an insurer of the subcontractor under the provisions of the workmen’s compensation act after the employee has received compensation under the act from the insurer of the subcontractor, where it appears that both the general contractor and the subcontractor have accepted the provisions of the act.</p>

<p>Contract, with a declaration as amended for $393.57 upon an account annexed for rent of a suite in Kirkland Court, Cambridge, for the months of February to July, inclusive, and seven tenths of the month of August, 1917, at $55.75 per month, with interest. Writ dated March 18, 1918.</p> <p>In the Superior Court, the action was tried before Morton, J. Material evidence is described in the opinion. At the close of the evidence, the judge denied a motion by the defendant that a verdict be ordered in his favor, ordered a verdict for the plaintiffs in the sum of $294.91, and reported the action to this court for determination upon the terms described in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Conversion. Sale, Rescission.</p> <p>In an action of tort' against a corporation for the conversion of a motor car, the following facts appeared: The defendant sold and delivered the car to a purchaser for his notes and a check and gave him a bill of parcels of the car. The following day the purchaser delivered the car to a warehouse corporation, receiving from it a receipt stating that the car was received from him for the account of a certain trust company, which had made a loan to him, and would be delivered upon surrender of the receipt properly indorsed and payment of storage charges. The warehouse corporation and the defendant occupied the same building, used the same offices, and the officers of both companies were the same; the manager of the warehouse was the purchasing agent of the defendant and was paid by both. A day later the purchaser gave the defendant a check to take up his unmatured notes. Both of his checks to the defendant were protested for non-payment, there being no funds to meet them at the bank on which they were drawn. The defendant then charged the purchaser with the amount of the checks and notified the warehouse corporation not to let the car go out of its possession until it learned whether the purchaser “intended to settle the checks up or not.” Later the purchaser negotiated with the plaintiff, who paid the purchaser’s obligation to the trust company, taking from it his bill of parcels, and gave him some cash, the purchaser giving the plaintiff a bill of sale as security. As a part of the same transaction the plaintiff gave to the purchaser a lease of the car under which a certain amount was to be paid to the plaintiff monthly for a period of six months for the use of the car, the title to-vest in the purchaser when the last payment was made. The bill of sale was not recorded in accordance with G. L. c. 255, § 1. The purchaser then made a payment of cash to the defendant, who credited him therewith on its books, continuing to charge him with the balance. Subsequently, either by the purchaser or the trust company, the warehouse receipt was surrendered to the warehouse corporation. For default on a payment under the lease from the plaintiff to the purchaser, the plaintiff thereupon showed the papers relating to the transaction to the defendant’s treasurer and demanded possession of the car, which was refused. A judge, who heard the action without a jury, found that, after the surrender of the receipt, the warehouse company held the car, not as a warehouseman, but as agent of the defendant. The judge specifically found that the plaintiff bought the car from the purchaser in good faith for value and without notice; that the purchaser’s title had not been rescinded and that the plaintiff was entitled to recover. Meld, that</p> <p>(1) The conduct of the defendant was, or could have been found to be, wholly inconsistent with an intention to rescind the contract, and the judge was fully justified in finding that it was not rescinded and that title did not revest in the defendant;</p> <p>(2) Although under G. L. c. 255, § 1, the bill of sale from the purchaser to the plaintiff was invalid, except as to themselves, because it was for security and was not recorded, an inference was warranted that by the giving of the lease by the plaintiff to the purchaser it was understood and agreed between the parties thereto that the plaintiff should have the absolute title and owner-</p> <p>. ship in the property, and that the purchaser might regain title if he performed the conditions of the lease;</p> <p>(3) Upon failure of the purchaser to perform the conditions of the lease to the plaintiff, the plaintiff became entitled to possession of the car;</p> <p>(4) A finding for the plaintiff was warranted.</p>

Tort for causing the death of Athanasios Papandrianos, the plaintiff’s intestate. Writ dated December 12, 1918. In the Superior Court, the action was tried before Fessenden, J. Material evidence is described in the opinion. At the close of the evidence, upon motion by the defendant, a verdict was ordered in its favor; and the plaintiff alleged exceptions.

<p>Equitable Restriction. Deed, Condition.</p> <p>The owner of a tract of land on the southerly side of a street in a city conveyed it in lots by deeds, each containing a provision in substance that “this conveyance is made on the express condition that no building shall ever be erected on the above described premises nearer” the street “than the line of the fronts of the other buildings on the south side of ” it, which were eighteen feet from the street. One such conveyance was made in 1835 to grantees to whom, four years later, the same parties conveyed all the grantor’s right, title and interest in the eighteen foot strip, the deed containing the provision that the grantees “their heirs and assigns shall forever have the right to use and improve said last described piece of land as a garden or yard or passageway over which to pass and repass to and from their said premises &” the street “with the privileges thereto belonging and the right to enclose the same with a fence out as far on” the street "as the northerly line of the front of the fence now standing in front of” a certain house thereon, “provided however that” the grantees “shall never erect any buildings thereon, and” they, “their heirs & assigns shall forever have an easement in and over” the street. Held, that the intent of the parties as shown by the deeds taken together was to create an equitable restriction as to the eighteen foot strip bordering the street for the benefit of the owners of other lots conveyed by the common grantor with provisions like those in the deed of 1835, and that the intent was not to create an estate upon condition.</p> <p>The owner of the lot conveyed in 1835 as above described erected and maintained for more than twenty years within the restricted area a stone stairway twenty and one half feet by six feet leading below the surface of the ground to a basement. It was not covered and had around it above the ground a metal railing four feet high. Held, that such structure was not such a “ building” as was prohibited within the restricted area.</p> <p>The owner of the lot above described erected and maintained and used for more than twenty years an addition to their building fourteen feet long which encroached upon the restricted area seven feet from his building. The original grantor, then an owner of lots in the original tract entitled to the benefit of the restrictions, objected, brought a writ of entry in the Land Court and, by agreement with the owner of the encroaching building, obtained its removal. No other owner of a lot entitled to object did so. In a petition in the Land Court by the owner of the encroaching building for registration of his title, it was held, that</p> <p>¡ (1) The title was subject to the rights of the original grantor against the maintenance of a building upon the restricted area;</p> <p>(2) So far as the owners of the other lots who had not objected to the maintenance of the encroaching structure for twenty years were concerned, the title was subject to the original restriction with the exception that so much of the petitioner’s land as had been covered by the encroaching structure was no longer subject to such restriction as to such other lots.</p> <p>The execution by the original grantor and by the owner of all lots in the tract above described, excepting the petitioner, of an indenture whereby, for a consideration, six feet of the eighteen foot strip farthest from the street was released, as to the lots of such owners, from.'the restriction and the building of ! structures within that six foot area in accordance with such releases was permitted, was held not to be sufficient to show that the original scheme of restriction had been abandoned or the restriction extinguished as to the petitioner.</p>

<p>Res Judicata. Sale, On execution.</p> <p>In a suit in equity to have a sheriff’s sale on execution and his deed in accordance therewith declared null and void on the ground that the sheriff made a false return in stating that the notice as set out in the return was given to the judgment debtor, and that no notice of the sale was published as alleged by the sheriff, the defendant, who was the purchaser at the sale, pleaded in bar that the present plaintiff had begun an action against the defendant by writ of entry in the Land Court to recover the premises in question, and that after issue joined in that court a hearing was had and the court had decided in favor of the defendant. It appeared that in the real action in the Land Court, the tenant had pleaded nut disseisin and had contended that, as the demandant was in possession, the writ should abate; and that the demandant had contended that because of the tenant’s plea of nul disseisin, the tenant should not be permitted to offer evidence “that he was not tenant, because such evidence would be repugnant to his plea.” The tenant was not permitted to offer such evidence. The judge of the Land Court in his decision, considering contentions of the demandant that the sheriff’s deed was invalid, ruled that the sheriff’s return was conclusive and that in that suit it could not be impeached, and that “As the officer’s return in the execution in substance shows a compliance with the statutory requirements” as to notice and deposit of copy in the registry of deeds, “there must be judgment for the tenant.” The plea of the defendant in the suit in equity was sustained and the bill was dismissed. The plaintiff appealed. Held, that</p> <p>(1) Although the judge of the Land Court ruled that the writ of entry should abate because it appeared that the plaintiff never had been out of possession, the case in that court was considered on its merits and was fully tried;</p> <p>(2) The plaintiff’s contention was res judicata;</p> <p>(3) The fact that the form of the action in the Land Court differed from the suit in equity in the circumstances did not prevent the decision of the Land Court from operating as a bar to the suit in equity.</p>

<p>Negligence, Licensee. Way, Private. Wanton or Reckless Misconduct.</p> <p>Where, in an action for personal injuries resulting from a door falling on the plaintiff from premises owned by the defendant bordering on a private street along which the plaintiff was passing, it appears that the deed of the premises to the defendant merely referred to a plan showing the private street, other streets and a public way and described these lots as on the plan, that the plaintiff lived '■ on one of the streets shown on the plan, that the plaintiff was using the private street to get to the public street, which was usable for that purpose, and that there was another way that might have been and often was used for that purpose by the plaintiff; and there is no evidence of the title under which the plaintiff occupied premises shown on the plan or that the deed of the premises occupied by the plaintiff made any reference to the plan, to the private street or to any rights of way over it, and the evidence will not warrant a finding that the cause of the falling of the gate upon the plaintiff was reckless or wanton misconduct on the part of the defendant or of his servants or agents, a verdict properly may be ordered for the defendant, there being no evidence warranting a finding of a breach of duty of the defendant toward the plaintiff, whose rights in the use of the street were at most those of a licensee.</p> <p>Evidence tending merely to show that the door, which fell upon the plaintiff in the action above described, was in a fence which was old and “very rotten . . .</p> <p>■ where it touched the ground,” and that the door was held in place by “three . bent spikes,” two on the "left hand side,” and one “on the right hand side,” while it would warrant a finding that the door was insecurely fastened, would not warrant a finding that the defendant had been guilty of reckless and wanton misconduct toward the plaintiff.</p> <p>Neither the absence of a notice or sign on the private street above described, in- . dicating that it was a private way or warning the public against its use, nor the fact that the private way was laid out between lands of the defendant’s prede- ' cessors in title and other abuttors, warranted a finding of any greater duty of the defendant to the plaintiff than that owed to a licensee.</p>

<p>Corporation, Officers and agents. Equity Jurisdiction, Suit by minority stockholder. Equity Pleading and Practice, Counsel fees.</p> <p>A suit by one of three stockholders and directors of a Massachusetts corporation, who owned one third of its capital stock, against the other two stockholders and directors, the corporation and a second corporation, which was organized before-the first corporation, whose board of directors was controlled by the individual defendants and ninety-eight per cent of whose stock was owned by them, the remaining two per cent being owned by their nephew, to require the defendants, to pay to the first corporation $15,000, alleged to have been paid to them for the capital stock of the first corporation and misappropriated, was heard by a judge of the Superior Court. The judge found, upon evidence warranting the-findings, in substance that the plaintiff paid to one of the defendants $5,000 for his stock, that the defendant did not pay that sum to the first corporation, but. paid it to the second corporation, that bookkeeping entries were made on the books of the second corporation charging each of the accounts of the individual defendants with $5,000, and crediting the first corporation with $15,000 on account of personal property alleged to have been sold to it by the second corporation; that no vote of the stockholders or of the directors of the first corporation authorized the purchase of such personal property, no bill of sale was. given and the plaintiff did not know of it; that it and certain real estate was-used by the first corporation, of which the plaintiff was manager, and that a sum was paid for rent which the plaintiff believed and was justified in believing was. for both real estate and personal property; that returns made under oath to State-authorities by the defendants and the plaintiff as to the organization of the first corporation stated that all the shares of that corporation were paid for in full in cash in the sum of $15,000. Held, that a decree directing the individual defendants and the second corporation to pay to the first corporation $15,000 and. interest was warranted.</p> <p>The directors of a corporation occupy a fiduciary relation toward the corporation and are bound to protect its interests: they cannot unlawfully divert the proceeds of its capital, or other assets, but must exercise their authority with the-utmost good faith.</p> <p>In the suit above described, a decree directing the defendants to pay to the plaintiff a certain sum for his costs and expenses in prosecuting the suit which should operate “as a payment pro tanto” to the first corporation of the entire sum adjudged to be due to it, and that the balance of that sum be paid to the first corporation, was a proper exercise of judicial discretion and was warranted.</p>

<p>Bill in equity, filed in the Superior Court on February 25, 1921, to reach and apply toward the satisfaction of a judgment debt owed to the plaintiff by the defendant Catherine A. Hayes, real estate which she had conveyed to her husband, the defendant Timothy F. Hayes.</p> <p>In the Superior Court, the suit was heard by Keating, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. Material evidence, findings by the judge and exceptions saved by the plaintiff to rulings as to evidence are described in the opinion. By order of the judge, a decree was entered dismissing the bill with costs to the defendant. The plaintiff appealed.</p>

<p>Bill in equity, filed in the Superior Court on January 14, 1922, by the ancillary receiver, appointed by the United States District Court for the District of Massachusetts, of Lincoln Motor Company, a Delaware corporation, seeking the appointment of a receiver of Puritan Motors Corporation, a Massachusetts corporation.</p> <p>Sydney R. Wrightington, Esquire, was appointed receiver. On May 26, 1922, Joseph F. Downey filed an intervening petition seeking to have paid to him in full from assets in the receiver’s hands the sum of $500, deposited by him with Puritan Motors Corporation under the provisions of the contract described in the opinion, and a further sum of $1,527.40, alleged to be held by that corporation as a trust fund for the benefit of the intervening petitioner.</p> <p>An answer was filed to the intervening petition and the petition and answer were referred to a master. It appeared that the intervening petitioner had entered into a contract in writing, described in the opinion, as "Dealer” with the Puritan Motors Corporation as “Distributor” for the selling in cities and towns comprising a large part of Essex County of motor vehicles manufactured by Lincoln Motor Company, called 'in the contract the “Manufacturer.” Material findings by the master and objections and exceptions to the report by the intervening petitioner and by the receiver are described in the opinion.</p> <p>The petition was heard by Morton, J., by whose order an interlocutory decree was entered overruling the exceptions of the intervening petitioner, sustaining those of the receiver, confirming the master’s report in other respects and adjudging that the claim of the intervening petitioner in the amount of $2,780.67 be allowed as a claim of a general creditor of the estate, not entitled to priority. Being of the opinion that such decree so affected the merits of the controversy that the matter, before further proceedings with respect to the claim of the intervening petitioner, ought to be determined by this court, the judge reported to this court for determination the question, whether such interlocutory decree was warranted.</p>

<p>Bond, To dissolve attachment. Surety. Practice, Civil, Amendment.</p> <p>An adjudication, in the allowance of a motion to amend a declaration, that the cause of action embraced in the declaration as amended is the cause of action relied on by the plaintiff when the action was commenced, is not by G. L. c. 231, § 138, conclusive upon sureties upon a bond previously given by the defendant to dissolve an attachment if they had no notice of the application for leave to amend nor opportunity to be heard thereon; and if, in an action by the plaintiff against such sureties after a failure to satisfy a judgment founded upon the amended declaration, the plaintiff testifies that he did not know of the facts which were set forth as the basis of one count added to the declaration by the amendment until three or four months after the beginning of the action, and such testimony is not disputed, it is proper for the trial judge to order the jury to answer in the negative a question, whether the cause of action set forth in such count was included in the same facts for which the action was intended to be brought when it was commenced.</p> <p>It appearing at the trial of the action against the sureties above described that the causes of action set out in three of the counts in the amended declaration in the original action were included in the cause of action for which the action was intended to be brought when it was commenced, but that that set out in a count added by the amendment was not so included, and that the verdict for the plaintifi was general, the trial judge ordered a finding against the sureties for the penal amount of the bond and ordered execution to issue for the amount of the finding in the original action less the entire amount which could have been recovered under the count adding new matter. Held, that such action by the trial judge was improper and that a verdict for the defendant sureties should have been ordered.</p>

<p>Bill in equity, filed in the Probate Court on March 23, 1922, for instructions "to whom and in what proportions . . . the property of” the estate of Frank L. Gould “remaining in the hands of” the plaintiff, administrator of the estate, “ after the payment of debts and of charges and expenses of administration,” should “be distributed, paid and transferred.”</p> <p>The suit was heard by Grant, J. The answer of the next of kin of Frank L. Gould contained allegations “that on or about March 17,1920, in full performance by Frank L. Gould of the agreement between Frank L. Gould, Mary J. Gould and the petitioner, a copy whereof is annexed to the petition, and in full compliance with a decree of the Superior Court as to alimony, a copy whereof is annexed to the petition, said Frank L. Gould paid to the respondent Mary J. Gould, through her attorney, the petitioner, the sum of $1,500.00 mentioned in said agreement and decree; wherefore, said respondents say that said agreement and said decree were fully complied with by said Frank L. Gould and by reason thereof respondent Mary J. Gould has no interest in and is estopped to set up any interest in the estate of the said Frank L. Gould.”</p> <p>Material facts are described in the opinion. By order of the judge, a decree was entered “that upon the repayment by the said Mary J. Gould to the plaintiff as administrator, of the sum of $1,500 paid to him by said Frank L. Gould on March 18,1920, together with interest thereon from said March 18, 1920, to the date of such repayment, the property remaining in the hands of the administrator, after the payment of all debts and charges and expenses of administration, be distributed according to the statute of distribution of the estates of intestates of this Commonwealth, in force on July 11, 1920, the date of the death of said Frank L.</p> <p>. Gould; — to wit, $5,000 and one half the residue to said defendant, Mary J. Gould and the balance equally among the remaining defendants or their legal representatives;” and costs as between solicitors and clients were awarded. Those defendants who were next of kin of Frank L. Gould appealed.</p>

<p>landlord and Tenant, Rights before conveyance of purchaser under agreement containing no demise.</p> <p>A person, in occupation of land under an agreement of purchase without a demise, during the pendency of the agreement has an interest in the land which is similar to a strict tenancy at will, and holds the possession at the will or sufferance of the owner of the land, and, pending conveyance, the seEer holds the legal title to the land subject to an equitable obhgation to convey to the plaintiff when conveyance is called for by and under the conditions stated in the agreement; and the seEer has a right, foEowing a notice to the purchaser to vacate, to an immediate possession of the premises which he can enforce by a writ of entry.</p>

<p> Tenant in Common. </p> <p>One tenant in common of real estate using and occupying a part of it without an express agreement to pay for such use and occupation and without excluding his cotenant from the property or preventing him from occupying it, cannot be required to pay rent therefor to the cotenant.</p>

<p>Certification to the Superior Court under the provisions of the workmen’s compensation act of a decree of the Industrial Accident Board, with accompanying record, that there was due to Alice Miller, minor child of Harry Miller, deceased, by reason of his death while in the employ of George Greenough, an immediate payment of $100 for the funeral expenses of the employee and weekly payments of $10 for a period of three hundred and ninety weeks, subject to the provisions of the act.</p> <p>In the Superior Court, the case was heard by Sanderson, J. Material facts are described in the opinion. By order of the judge a decree was entered that the claimant “was dependent” upon her father “for her support and maintenance,” and that the payments specified in the decision of the Industrial Accident Board should be made by the insured. The insurer appealed.</p> <p>The case was submitted on briefs.</p>

Contract by the “trustee in bankruptcy of Cameron Currie and Company of Detroit, Michigan,” against the members of the firm of Hayden, Stone and Company, stockbrokers having a usual place of business in Boston, with a declaration in two counts, each for money alleged to have been had and received by the defendants to the plaintiff’s use, the sum of $90,989.40 being named in the first count and the sum of $30,511.33 being named in the second count.

<p>Petition, filed in the Probate Court for the county of Middlesex on June 30, 1921, by a husband against his wife, praying that a decree, entered on November 17, 1915, on petition of the wife, adjudging that she was living apart from her husband for justifiable cause, enjoining him from imposing any restraint on her personal, liberty and ordering him to pay to her for her support $20 forthwith and $6 each week, “be annulled or modified as to the amount of the allowance.”</p> <p>The grounds stated by the petitioner were that he was “ a man of limited wages,” and the following:</p> <p>"First. Your petitioner had at the time he refused to live with said Bernice T. Gifford good and lawful cause for his refusal so to do but the merits of this question were not gone into and properly adjudicated at the hearing when said decree was made and granted.</p> <p>“Second. Since the granting of said decree your petitioner has become under moral if not legal obligation to contribute toward the support of his mother and does so contribute toward her support.</p> <p>“Third. Your petitioner is informed and believes and therefore avers that since the granting of said decree the said Bernice T. Gifford has inherited money or property from relatives which has materially improved and changed her financial circumstances.</p> <p>“Fourth. That since the granting of said decree the earning capacity of the said Bernice T. Gifford has become as great if not greater than that of your petitioner and does earn as much if not more than your petitioner and the said Bernice T. Gifford now lives in a manner far beyond the means of your petitioner including extravagant expenditures in social frivolities and the ownership and maintenance of an automobile.</p> <p>"Fifth. Some months ago your petitioner offered to provide said Bernice T. Gifford with the best home with him which his means would maintain but the said Bernice T. Gifford without just and lawful cause refused said offer.”</p> <p>The petition was heard by Leggat, J. The petitioner moved to amend his petition by adding the following: “Petitioner, Nathan A. Gifford, further sets forth that the cause why he refused to live with his wife is that living at Northampton instead of Somerville would have given him more leisure time and more time at home and would have been less expense, but the respondent, Mrs. Gifford, refused to remove to Northampton.” The motion was denied.</p> <p>The judge refused to go forward with the hearing until arrears due from the petitioner under the decree in favor of his wife were paid. The money was paid in open court, and the hearing proceeded, a stenographer having been appointed under G. L. c. 215, | 18, to take the testimony.</p> <p>The letter from the petitioner to his wife, referred to in the opinion, was dated April 18, 1921, and was as follows: “My Dear Mrs. Gifford No doubt you will be surprised to hear from me but I hope time may have effected your ideas and opinions as much, as it has mine. I am sorry to say that my run was some time ago-changed which means about ($14.00) less pay a week and we are also in for a cut in wages. And I have to help my mother some-each week also so you can see I am unable to go on as I am and keep square with the world. Now keeping house would be more economical than these separate living expenses and I simply cannot, keep even as I am now situated. We could living comfortably on. what I have if we kept house and lived as man and wife should. Will you not consider this step? And if not will you not agree to a reduction in my weekly payments to you so that I can get by. If I should get into to much debt and have my wages trusteed it might mean the loss of my job and then you would get nothing at all as jobs are now scarce. I hope you will see the justice of this, request and that it is in the interests of us both that you grant it, unless you just wish to make me trouble and I will not believe this, of you yet. I am registering this letter because I will not believe-that you will not meet me half way until I am sure that you get. the letter. I am of course glad to know that you are so prosperous, and trust you will try to do what will prove for our mutual benefit. Yours Sincerely, Nathan A. Gifford.”</p> <p>Other material evidence and rulings by the trial judge are described in the opinion. By order of the judge a decree was. entered dismissing the petition. The petitioner appealed.</p> <p>The case was submitted on briefs.</p>

Petition, filed in the Probate Court on February 7, 1922, and afterwards amended, for the proof of the will of John A. Cunningham, late of Cambridge. The following issues were framed in the Probate Court and were sent to the Superior Court for trial: “ 1. Was said John A. Cunningham at the time of the execution of said alleged will of sound mind? “2.

Tort by the administrator of the estate of Dannis Direnski for the causing through negligence of conscious suffering and the death of the plaintiff’s intestate. Writ dated September 14,, 1921. In the Superior Court, the action was tried before Lawton, J. Material evidence and exceptions saved by the defendant are described in the opinion. There was a verdict for the plaintiff in. the sum of $5,000; and the defendant alleged exceptions.

Contract, against the insurer of the plaintiff’s employer against liability under the workmen’s compensation act, upon the agreement described in the opinion. Writ dated December 5, 1918. In the Superior Court, the action was tried before Aiken, C.J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied.

Petition, filed in the Probate Court for the county of Dukes County on May 5, 1921, for the proof by copy of an alleged lost •will of Lucy J. Dix, late of Oak Bluffs. In the Probate Court, the petition was heard by Hopkins, J. Material evidence is described in the opinion. A decree was entered dismissing the petition; and the petitioner appealed. The case was submitted on briefs.

Bill in equity, filed in the Superior Court on June 20, 1914, by George F. Monahan, Mary F. Monahan and Frank F. Monahan, against Harvard Brewing Company, Harry C. Roberts and William H. Brown, and amended on June 2, 1919, and again on January 5, 1920, by the filing and allowance of a substituted bill.

Tort, with a declaration in four counts, the plaintiff in thé first count alleging the libel described in the opinion, and in the second, third and fourth counts alleging that the defendant, “without justifiable cause, with full knowledge” of certain contracts into which the plaintiff had entered for the purchase of merchandise, “maliciously and unlawfully caused” the vendors “to break” the contracts “and to cancel the same, in consequence whereof” the purchasers “refusedto…

<p>Workmen’s Compensation Act, Review of weekly payments, Procedure: requests for findings and rulings.</p> <p>No question of law is raised by a refusal of the Industrial Accident Board to grant a request for a finding of fact.</p> <p>A finding of the Industrial Accident Board, upon a claim for review of weekly payments under the workmen’s compensation act, that the employee was able to earn an average weekly wage equal to what he was able to earn at the time of Ms injury, cannot be reviewed.</p> <p>The Industrial Accident Board properly may refuse to grant requests for rulings which assume as true facts wMch they do not find to be true.</p>

<p>, Contract or tort against Frank I. Tobin and Elizabeth E. Tobin, with a declaration in tort for unlawfully entering upon premises of the plaintiff and -negligently undermining a bank or retaining wall. Writ dated September 3, 1918.</p> <p>In the Superior Court, the action was tried before Hammond, J. Material evidence and exceptions by the defendant Frank I. Tobin are described in the opinion. The jury found for the defendant Elizabeth E. Tobin and for the plaintiff against Frank I. Tobin in the sum of $238.20; and the defendant Frank I. Tobin alleged exceptions.</p>

<p>Devise and Legacy, Exercise of power of appointment, Residuary clause. Equitable Conversion.</p> <p>A testator who died in 1895 by his will provided that his entire estate should be held by trustees, who were empowered to retain property owned by him or to sell and invest the same, and were directed to pay the income of one fourth thereof to his widow and the income of three fourths thereof to his six children, two sons and four daughters, and in 1905 to divide the three fourths into six: equal parts and transfer one half of each part absolutely to the respective children and retain the other half in the trust for their benefit and pay the income therefrom to each child respectively. It also was provided that upon ■the death of his widow one half of the trust fund for her benefit should be added to the trust fund for each son and held by the trustees upon “the same terms and conditions as those governing the trust which is to be created in their [his children’s] behalf in and after the year 1905.” The widow died in 1917. The will gave to one son a general power of appointment over his share of the estate held in trust in the event he had no children. That son died in 1918 without children and leaving a widow. By the ninth clause of his will he gave to his widow "all my real estate absolutely” and provided that the net income “except as hereinafter provided” was to be paid to his wife for her life but in the event of her marriage, in lieu of the income, she was to be paid $50,000. By the eleventh clause of his will that son devised and bequeathed “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,” to nephews and nieces and upon failure of certain lives to an educational institution. After the death of that son the trustees of the father’s will sold certain real estate which was possessed by them in 1905 and had been retained in the trust without division in whole or in part among the children. Upon a petition by the executors and trustees of that son’s will for instructions as to whether the proceeds received from the sale of the real estate should pass to his widow under the ninth clause of his will or whether it should pass as personal property to the trust fund created by his will, it was held, that</p> <p>(1) The proceeds of such real estate which formerly was held by the trustees of the father’s will under the trust and of that which should have been transferred in 1905 to the son were to be treated as would the real estate if it had not been sold;</p> <p>(2) The son had as to one sixteenth of the real estate in question a complete equitable estate in fee simple, subject only to the trustees’ power of sale, which he could devise;</p> <p>(3) The one sixteenth of the proceeds from the sale of the real estate which belonged to the son outright passed under the ninth clause of his will and belonged to his widow absolutely;</p> <p>(4) The son had merely a power of appointment over the one sixteenth of the proceeds from the sale of the real estate which should have been added to the trust fund for his benefit and the two sixteenths which on the death of his mother should have been added to that fund;</p> <p>(5) The son intended that the three sixteenths of the proceeds of the sale of the real estate over which he had a power of appointment should be retained by the trustees under his will subject to the right of his widow in the income thereof and on her decease or marriage it was to be disposed of under the eleventh clause of his will to the residuary legatees and devisees.</p>

<p>Tort for conversion of $720. Writ dated September 23, 1920. In the Superior Court the action was heard by McLaughlin, J., without a jury, upon a statement of agreed facts described in the opinion. The judge found for the plaintiff in the sum of $788.73; and the defendant appealed.</p>

<p>Contract by the administrator of the estate of David Roberts, late of North Adams, for the amount in the defendant savings bank standing in the name, “David Roberts trustee for Martha Roberts Zimmerman.” Writ dated January 4, 1921.</p> <p>Martha Roberts Zimmerman was summoned as a claimant and answered. The action was tried before Wait, J. Material evidence is described in the opinion. The record states: “After the parties had rested, the court asked the attorney of Martha Roberts Zimmerman whether the claimant maintained that there was a completed trust of $1,000 or a gift of the bank book, and her attorney replied that she did not claim a gift of the book but a completed trust for $1,000.”</p> <p>The plaintiff moved that a verdict be ordered in her favor, and, that motion being denied, asked for the rulings described in the opinion, which were refused.</p> <p>At the conclusion of the charge, the trial judge stated to the jury: “In order to enable you more easily to determine the thing, the only question that’s before you gentlemen is this: Was there a completed trust of $1,000 of the deposit in question made to Mrs. Zimmerman? You can answer that 'Yes’ or ‘No,’ and as you answer it, the entry will be made for the payment of the money.” The jury answered the question in the affirmative; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Conservator. Practice, Civil, Request for ruling, Exceptions.</p> <p>At the trial of an action against a person under conservatorship to recover for care and nursing of him, for money expended in buying food for him and for money paid to him for the purchase of merchandise and wearing apparel, the judge refused to rule, as requested by the defendant, that “If the conservators . . . furnished sufficient sums of money to the defendant for his comfortable support the plaintiff cannot recover in this action for services, rendered or for goods furnished to the defendant,” and the jury returned a-verdict for the plaintiff. Upon a bill of exceptions, which did not purport to contain all the material evidence, it was held, that, even if it were assumed that the ruling requested was a correct statement of law, it was inapplicable on the-facts disclosed, as the jury may have found that it was necessary for the defendant’s comfort to have the care of a nurse, that articles furnished by the plaintiff were necessary and were not supplied from any other source and that, certain sums contributed by the conservator, taking into account the defendant’s wealth and all the circumstances, may have been inadequate.</p>

<p>Bill in equity, filed in the Superior Court on November 15, 1921, to restrain the defendant from alleged violations of certain equitable restrictions described in the opinion.</p> <p>The suit was referred to a master who filed a report containing findings to which no objections or exceptions were made and which, so far as material, are described in the opinion. The suit after-wards was heard upon the master’s report by Keating, J., by whose order in accordance with the agreement of the parties an interlocutory decree was entered confirming the master’s report. Later the suit came on to be heard before the same judge upon the bill, answer and master’s report and with consent of the parties was reserved by him for determination by this court.</p>

<p>Evidence, Competency. Practice, Civil, Interrogatories, Continuance.</p> <p>At the trial of an action for personal injuries the plaintiff testified in direct and cross-examination that his chief complaint since the accident related to injuries to his back “which began troubling him right after the accident;” that he lost three months’ wages and saw the doctor thirty-five times. On cross-examination he was questioned as to certain answers to interrogatories made and sworn to by him in which he stated the injuries sustained were “ Cut on face, permanently disfigured,” "Permanent disfigurements, and nervous sensations about the wound,” no mention of injury to back being made, his loss of time being represented as “Three weeks wages,” his incapacity “About three weeks following the accident” and the number of consultations, examinations or treatments by the doctor being stated as six. On redirect examination, subject to exceptions by the defendant,'the plaintiff was allowed to refresh his recollection from a memorandum containing answers in his own handwriting to the interrogatories which he had sent to his attorney and from which the typewritten answers were prepared by the attorney, and to testify in explanation of the inconsistencies between the answers and his testimony and to introduce the answers thus prepared by him and sent to his attorney. Held, that, in the circumstances the evidence excepted to was admissible to show that the plaintiff’s testimony given at the trial respecting injuries to his back was not a recent fabrication for the purpose of enhancing damages.</p> <p>While the defendant in the circumstances above described had a right to assume that the sworn answers filed by the plaintiff in answer to the interrogatories were true and covered all the injuries he received, if his counsel learned for the first time at the trial that the plaintiff claimed he received injuries resulting from the accident which were not described in his answers and if the defendant required time to meet that claim, presumably his rights would have been fully protected by a postponement of the trial on motion to the presiding judge; and it seems that the allowance of such ,a motion, if made, would have been the exercise of a sound judicial discretion.</p>

<p>Bills and Notes, Holder in due course. Conflict of Laws. Evidence, Presumptions and burden of proof, Of foreign law.</p> <p>A resident of Boston made a negotiable promissory note dated at New York City payable at a bank in Boston to a New York payee and delivered it in New York to the payee in part payment of goods purchased from the payee which were defective in quality. The payee before maturity indorsed the note in blank and delivered it to a New York corporation in part payment of a previous note of the payee held by the corporation. In an action by the corporation against the maker, it appeared that in the payee’s hands the note was subject to an equitable defence arising from the defective quality of the goods, and that by Laws of N. Y. 1897, c. 612, § 51, cited in a decision of a New York court, other than a court of last resort, introduced by the defendant to prove the law of New York relative to indorsement of negotiable paper, "Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.” There also was evidence that the plaintiff did not know and had no reason to know of any defect or infirmity in the note or of any equitable defence which might exist therein between the maker and the payee. The trial judge found for the plaintiff. Upon appeal it was held, that</p> <p>(1) The plaintiff was prima facie a holder in due course;</p> <p>(2) There being no evidence to the contrary, Laws of N. Y. 1897, c. 612, § 51, was presumed to be still in force in that State;</p> <p>(3) Value was given by the plaintiff within the terms of Laws of N. Y. 1897, c. 612, § 51;</p> <p>(4) As the provisions of Laws of N. Y. 1897, c. 612, § 51, are identical with provisions in G. L. c. 107, §§ 48, it was not prejudicial error for the trial judge to refuse to rule that the question of value was governed by the law of New York and to refuse to determine what the law was;</p> <p>(5) Although an objection by the plaintiff, on the ground that the statute should be proved by an authenticated printed copy thereof, might have been sustained to the admission in evidence of the decision containing the citation of Laws of N. Y. 1897, c. 612, § 51, which was the only evidence in the record of that statute, the defendant, having offered the case in evidence, . could not complain nor object to any result which its probative significance was adequate to require;</p> <p>(6) The New York decision cited, although not of a court of last resort, in the circumstances was competent to prove the statute.</p>

<p>Bills and Notes, Payment of bank check. Bank.</p> <p>If two checks drawn by a depositor upon a bank in which he has a deposit are presented simultaneously to the bank for payment and there are funds in his deposit sufficient to meet either of the checks but insufficient to meet both, it is the duty of the bank, in the absence of a custom or a rule of bankers to the contrary, to pay one of the checks.</p>

<p>Tort for personal injuries sustained in a collision of a car of the defendant with a coal wagon driven by the plaintiff. Writ dated October 14, 1919.</p> <p>In the Superior Court, the action was tried before Bell, J. Material evidence is described in the opinion. By order of the judge, the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>