Volume 245 — Massachusetts Reports

<p>Bill in equity, filed in the Superior Court on September 27, 1922, against Sun-American Pubhshing Company, John P. S. Mahoney, its president, and James J. Wrinn, its manager, seeking to enjoin the defendants Mahoney and Wrinn and their several and respective servants, agents, employees and attorneys “ from further conspiring or combining together,” or with the defendant, the Sun-American Pubhshing Company, to cause or instigate the publication by it or by any other pubhshing agency, of any editorial statements, or representations calculated or intended unjustifiably or unwarrantably to discredit or disparage the financial or business credit of the plaintiff or so to disparage the conduct or administration of the plaintiff’s corporate affairs, or of any hst or hsts, purporting to set out and exhibit the names of all reputable, accredited, and lawfully estabhshed trust companies doing business in said city of Lawrence, without the name of the plaintiff being included in such hst or hsts, or of any editorial, statement, representation or recital intended to discredit or impair the financial or business credit of the plaintiff or the conduct or administration of its corporate or business affairs. Further prayers sought damages and attachments by way of trustee process of goods, effects and credits of the defendants alleged to be in the hands and possession of Arlington Trust Company and Merchants Trust Company, of Lawrence, and Old Colony Trust Company of Boston, that attachments of real estate of the defendants Mahoney and Wrinn be made and that they be enjoined from conveying their real estate pendente lite.</p> <p>Material allegations in the stating part of the bill are described in the opinion.</p> <p>The defendants demurred to the bill on the following grounds:</p> <p>“ 1. The bill discloses no ground for relief in equity;</p> <p>“ 2. The plaintiff, so far as appears, has an adequate remedy at law;</p> <p>“ 3. The only substantial relief sought by the bill is an injunction against the publication of defamatory matter;</p> <p>“ 4. It does not appear that the defendants or any of them are insolvent or unable to pay whatever damages the plaintiff may at any time be entitled to;</p> <p>" 5. It does not appear that the defendants or any of them have any property which cannot be come at to be attached at law;</p> <p>“ 6. The bill does not seek to reach or apply any specific property of the defendants or any of them;</p> <p>“ 7. The damages which the plaintiff seeks to recover are altogether unliquidated and do not constitute a debt.</p> <p>“ The defendants further demur to the bill in so far as it seeks to restrain the publication of certain lists of banks without including therein the name of the plaintiff.</p> <p>The demurrer was heard by Morton, J., who ordered it overruled, and, being of opinion that such order so affected the merits of the controversy that before further proceedings the matter ought to be determined by this court, he reported the suit for that purpose, “ such order to be entered as the law may require.”</p>

<p>Warehouse, Bonded. Contract, Implied. Intoxicating Liquors. Assignment. Bailment. 1</p> <p>An assignee of subsequent and successive grantees of the purchaser at a sale in 1905, in foreclosure of a mortgage, of real estate upon which is a bonded warehouse in which in 1903 thirty-two hundred barrels of rum had been stored by a distiller, who then owned the real estate, under the provisions of U. S. Rev. Sts. §§ 3271 et seq., cannot maintain any action for storage against one who in 1911 received as a pledgee negotiable certificates for four hundred and fifty barrels of the rum, twenty-six of which, calling for delivery of two hundred and fifty, barrels, had been issued by the distiller in 1903, and one, calling for delivery of two hundred barrels, had been issued in 19ll, although in 1912 the pledgee for breach of the pledge took possession of four hundred and twenty-nine of the barrels and removed them from the warehouse, none of the plaintiff's assignors in the circumstances having any right as warehouseman as to the bonded goods and there being no contract, express or implied, rendering the pledgee liable for any storage charges.</p>

Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board that the claimant, while in the employ of Turner Construction Company, had received personal injuries which had resulted in his being totally disabled, that, although he had not filed a claim as required by the act, he had reasonable cause for failing to do so and that the insurer was not prejudiced by such failure.

Contract for $10,047.28, being the balance of principal and interest alleged to be due to the plaintiff upon a note dated August 12, 1920, payable to the plaintiff’s order in four months in the amount of $40,000, signed and indorsed by S. Vorenberg Company, the defendant. Writ dated December 7, 1921. In the Superior Court, the action was tried before Wait, J. The plaintiff introduced the note in evidence and rested.

Contract, by the commissioner of banks in possession of the property and business of Tremont Trust Company, for a balance alleged to be due upon a note payable to Tremont Trust Company in the sum of $5,000 made by Meyer Abramson on January 26, 1921, and indorsed by the defendant. Writ dated February 16, 1922. The action was tried before Qua, J. Material evidence is described in the opinion.

Bill in equity, filed in the Superior Court on April 5, 1920, against Arabelle H. McClure and the administrator of the estate of her father, Charles F. McClure, late of Boston, to have adjudicated the amount still due to the plaintiff after the foreclosure of a mortgage securing a mortgage note given by Charles F. McClure and to reach and apply toward satisfaction thereof certain real estate alleged to have been conveyed by McClure to his daughter with intent to defeat and…

Contract by the trustee in bankruptcy of the Great Western Hide Corporation for $1,149.75, alleged to have been had and received to that corporation’s use by the de-' fendant. Writ dated February 19, 1921. The action was heard in the Superior Court by McLaughlin, J., without a jury.

<p>Superior Court. Jurisdiction. Marriage and Divorce, Alimony, Report by judge in divorce proceedings.</p> <p>The Superior Court has jurisdiction and power under G. L. c. 208, § 34, to enter a decree for alimony upon a petition filed on March 7, 1922, by a libellant, who on October 8, 1916, upon a petition filed on April 8, 1913, had been granted a decree nisi of divorce on the ground of desertion, the judge at the time of the ordering of the decree nisi having “ made no order for alimony because of the fact that the libellee’s earning capacity was not before the court,” and having “ stated in open court that he would hold the matter open until such facts were brought to his attention.”</p> <p>Upon a report of a judge of the Superior Court reserving for determination by this court only the question, whether he was right in refusing to rule that he had no power to grant the petition for alimony above described, it is not open to the libellee to contend that the libellant had been guilty of laches.</p>

<p>Bills and Notes, Holder in due course, Indorsement. Partnership.</p> <p>Where, in an action upon a promissory note by a holder in due course against a firm whose name was indorsed thereon, it appears that all indorsements were in blank and that the order Of indorsements was, first, that of the payee, second, that of the defendant firm, third and fourth, those of two other persons, and, fifth, a second indorsement by the payee, and the judge, who heard the action without a jury, found that the indorsement of the defendant partnership's name was by one partner without authority of his copartner and for the accommodation of the maker and that the plaintiff had neither knowledge nor notice of the lack of authority of the indorsing partner, it was held, that</p> <p>(1) On the record, the fact, that the indorsement of the firm name of the defendants by one partner was without authority, was not a defence;</p> <p>(2) The finding, that the indorsement of the defendants was for the accommodation of the maker, was final, and the order of indorsements did not show as a matter of law that the indorsement of the defendants was for the accommodation of the payee;</p> <p>(3) The fact, that the note before maturity came in the usual course of business into the hands of the payee after having been once negotiated by him, did not destroy its negotiability nor defeat the right of a subsequent bona fide holder to recover against all previous parties;</p> <p>(4) The plaintiff could have struck out all previous indorsements not necessary to his own title, and have held the defendants under the blank indorsement by their firm.</p>

<p>Two complaints, received and sworn to in the First District Court of Northern Middlesex, respectively on October 5 and October 18,1922, the defendant being charged in the first complaint with keeping and maintaining at Ayer during the three months preceding October 5, 1922, a certain tenement “ by him used for the illegal sale and illegal keeping for sale of intoxicating liquor, to the common nuisance of . all the people,” and in the second complaint with exposing and keeping intoxicating liquor for sale at Ayer on October 11, 1922.</p> <p>On appeal to the Superior Court, the cases were called for trial before Hammond, J.', and the Commonwealth proposed that they be tried together. The defendant objected, denying the right of the court to order the two complaints tried together. The judge ruled that he had discretionary power to order a trial of the defendant upon both complaints at one time and, subject to the defendant’s exception, ordered such a trial.</p> <p>There was evidence that the defendant lived in a house owned by his wife in Ayer, that his family consisted of himself, his wife, two married sons and three minor sons and that he had three boarders.</p> <p>On the first complaint the only intoxicating liquors shown by direct evidence to have been kept upon the premises during the three months previous to October 5, 1922, were a little less than three quarts of “ moonshine,” so called in the record, which were contained in three bottles found by the police officers in a barn in the yard in the rear of the house, being a part of the premises, during a search of the premises made on September 30, 1922, under a search warrant in the defendant’s absence. At the same time, the officers found a small tin funnel in the barn, which was wet and smelled of “ moonshine.”</p> <p>The Commonwealth introduced evidence tending to show that during the period between July 30, 1922, and October 5, 1922, on numerous occasions persons were seen going to and from the premises in such circumstances as thereby to furnish evidence proper for the consideration of the jury upon both complaints as indicating that intoxicating liquors were sold there.</p> <p>On the second complaint, a police officer testified that at about 8:25 p.m. on October 11, while he was watching the house of the defendant, one Patrick O’Gara came to the kitchen door during the absence of the defendant and rapped on the door, that the defendant’s son Simon, seventeen years of age, came to the door and then went out into the yard and took a quart bottle from his inside pocket and passed it to O’Gara, who gave him some money; that O’Gara then left the house and had gone but a hundred yards or so when the officer overtook and arrested him; that O’Gara was druiik, that' he threw the bottle on the ground and spilled some of it. The liquor taken from O’Gara was the only intoxicating liquor which the government claimed was kept by the defendant under the second complaint. The defendant excepted to the introduction of any evidence of the actions of O’Gara or of the defendant’s son Simon in his absence.</p> <p>The only evidence offered by the prosecution to prove the alcoholic contents of the “ moonshine ” were four certificates in the form prescribed by G. L. c. 138, § 55, signed by the analyst of the department of health. There was one certificate for each bottle of the three seized on September 30 and one certificate for the bottle taken from O’Gara. The defendant separately objected to the introduction of each of these certificates, not because they did not conform to the statute but on the ground that the statute was unconstitutional. The analyst was not called as a witness, and the defendant contended that he had the right to meet the analyst face to face. The trial judge admitted the certificates in evidence, subject to exceptions by the defendant.</p> <p>The foregoing was stated to constitute all the evidence material to the bill of exceptions.</p> <p>The defendant asked the trial judge to give the following instructions to the jury:</p> <p>“ 1. There is no evidence which would warrant the jury in finding that the defendant made any illegal sale of intoxicating liquor within the period covered by the complaint for a liquor nuisance [the first complaint].</p> <p>“ 2. There is no evidence which would warrant the jury in finding that the defendant illegally kept intoxicating liquor for sale, within the period covered by the complaint for a liquor nuisance.</p> <p>“ 3. Proof of a single sale of intoxicating liquor is not sufficient to warrant a conviction of keeping and maintaining a liquor nuisance.</p> <p>“ 4. On all the evidence . . . [relating to the first complaint], the jury would not be warranted in returning a verdict of ‘ guilty ’ and the verdict must be ' not guilty/</p> <p>“ 5. On all the evidence . . . [relating to the second complaint], the jury would not be warranted in returning a verdict of ' guilty ’ and the verdict must be ' not guilty/</p> <p>“ 6. There is no evidence in this case that any short quart of moonshine was found in the defendant’s possession on October 11, 1922.</p> <p>“ 7. There is no evidence in this case that any short quart of moonshine was found on the premises occupied by the defendant on October 11, 1922.</p> <p>“ 8. There is no evidence in this case which would warrant the jury in finding that the defendant authorized his son Simon to sell the short quart of moonshine to Patrick O’Gara on October 11, 1922, even if the jury believed Simon did make such a sale to O’Gara.</p> <p>“ 9. In order to convict the defendant in . . . [the second case] the government must prove beyond a reasonable doubt that the defendant kept the short quart of moonshine taken from O’Gara on October 11,1922, with intent to sell it within the Commonwealth and contrary to its laws.</p> <p>“ 10. The defendant is not responsible in these cases for any unlawful act of his son Simon unless such unlawful act was done by the direction of the defendant.”</p> <p>The trial judge refused to grant the requests for instructions numbered 1 to 9, inclusive, and refused to give the request numbered 10 in the form in which it was asked, but did instruct the jury that the defendant would not be responsible for any unlawful act done by his son Simon in the second case unless it was done by the consent of the defendant.</p> <p>The jury returned a verdict of guilty in each case. The defendant alleged exceptions.</p> <p>G. L. c. 138, § 54, is as follows: “ The department of public health shall inspect and analyse all liquors sent to it by the licensing board of any city, the selectmen of any town, or by police officers or other officers authorized by law to make seizures of liquors, if the department is satisfied that the analysis requested is to be used in connection with the enforcement of the laws of the commonwealth. It shall return to such licensing board, selectmen, police or other officers, as soon as may be, a certificate signed by it of the percentage of alcohol by weight at sixty degrees Fahrenheit which such samples of liquor contain. Such statement shall be prima fade evidence of the composition and quality of the liquors to which it relates.”</p> <p>The forms to be used are prescribed by § 55.</p>

<p>Voluntary Association. Labor Union. Equity Jurisdiction, To enjoin unwarranted action by international voluntary association against a local constituent association, Clean hands. Equity Pleading and Practice, Master: exceptions to report. Evidence, Relevancy and materiality.</p> <p>The general executive board of the international body of a labor union, who by the union’s constitution are given all the executive powers of that body when it is not in session and the power to revoke the charter of a local, constituent union for violation of the constitution and rules of the international body, has no power nor authority to revoke the charter of such a local union merely because it refuses to surrender its charter as one step, stipulated by such board, in an amalgamation with another local union in its district under a new charter to be issued by the international body, where it appears that such board has no power under the constitution to impose an amalgamation on any local union without its consent; and an order by such board of that purport is void.</p> <p>Equity has jurisdiction of a suit by officers and members of such a local union against the general executive board of the international body to enjoin the defendants from depriving the local union of its charter, books, papers and other property and from revoking its charter, where it appears that, at the time the controversy arose, the local union was an active, flourishing organization in sound financial condition, that its members were steadily employed, and that it had an office and was recognized by employers as an agency where competent workmen of the class comprising the union might be secured, such a suit involving property rights of the plaintiffs which were threatened with destruction or impairment by unwarranted action by the defendants.</p> <p>The purported action by the defendants in the suit above described being void and it appearing that resort to remedies within the international body would be accompanied by great delay and that an appeal to the defendants as a board would be an empty formality by reason of their known attitude on the subj ect matter of the controversy, it was held that the suit was properly brought without the seeking by the plaintiffs of further relief within the international body.</p> <p>The plaintiffs were not prevented from maintaining the suit above described by reason of certain delinquencies and informal conduct on their part in violation of rules of the union, which conduct had no Immediate and necessary relation to the equitable relief sought and as to which it was found that there was no intention to violate the rules of the organization and that the variance from strict compliance was due to ignorance or oversight in the performance of routine official duties.</p> <p>The suit above described was referred to a master. The defendants excepted to a portion of the report in which the master in substance stated, on the question of an appeal by the plaintiffs to the general executive board of the international body, that the board would endeavor to review the case impartially but that their opinions were such that a change of attitude could not be expected. Held, that the statement was a finding of fact and, the evidence not being reported, no exception thereto could be sustained.</p> <p>An exception to a finding by the master in the suit above described, that the suit was authorized properly, cannot be sustained where it appeared from the report that the local union, after a letter from the defendants’ president demanding surrender of the plaintiffs’ charter, voted to refer the letter to the executive board of the local union with full power to act for the union, that counsel were retained, a suit was brought, and the matter was reported by the plaintiffs’ executive committee to a meeting of their local union and a vote of confidence was there given to the board “ in handling our case for ” the local union.</p> <p>It was proper at the trial of the suit above described to refuse to permit the defendants’ president to be asked, relative to a telegram which was clear and unambiguous, “ What was it your intention to vote when you sent that communication?”</p> <p>The secretary of the plaintiff local union having stated, relative to the approval of a certain working agreement by the defendants’ office, that, according to the best of his belief he sent a copy of the agreement to that office, properly was permitted to state his practice of sending copies of written agreements to the defendants’ office.</p> <p>An exception relating to evidence not shown by the record to be material must be overruled.</p> <p>It appearing that the defendants in the suit above described contended that the plaintiffs had made no attempt to carry out a vote of the local union to compromise with the international body “ if possible,” it was proper to permit the local union’s secretary to testify that, immediately following proceedings in court on a day when the executive committee had met with counsel and discussed means of adjustment, he had a further conference with counsel who reported that counsel for the defendants had said in effect that it was impossible to do anything in the way of adjustment.</p> <p>It was proper at the trial of the suit above described to exclude from evidence the opinion of a member of the executive board of the local union, who as such was named as a plaintiff, that the acts of the general president and of the general vice-president of the international body amounted to revocation of the charter of the local union, as well as his opinion that he did not think that the general executive board of the international body had so prejudged the case that a favorable hearing on the appeal would be denied the plaintiffs.</p>

<p>Bill in equity, filed in the Superior Court on November 23, 1921, and afterwards amended, seeking the cancellation of a mortgage by one Fee, holder as a “ straw man ” of real estate purchased by the plaintiff, to one Brown and of an assignment of that mortgage to the defendant, and an injunction against its foreclosure.</p> <p>In the Superior Court, the suit was referred to a master. Material findings by the master are described in the opinion. The suit was heard upon the pleadings and the master's report by Morton, J., by whose order there were entered an interlocutory decree confirming the report and a final decree dismissing the bill with costs. The plaintiff appealed.</p>

<p>Trust Company, Savings department, In liquidation. Bills and Notes, Payment, Renewal. Payment. Evidence, Presumptions and burden of proof.</p> <p>Upon a petition by the commissioner of banks in possession of property and business of an insolvent trust company having a commercial and a savings department, for authority to transfer from the savings department to the commercial department certain notes illegally transferred from the commercial department to the savings department and to transfer from the commercial department to the savings department the amount taken from the savings department for such notes, it appeared that, after the notes had been transferred to the savings department and had fallen due, renewal notes were given in their place. A master found that in case of such renewals the original note was treated as if it had been paid in cash and corresponding entries were made on the books of the company; that there was no intention of the officers of the savings department or of the makers that the debts evidenced by the notes when transferred from the commercial department to the savings department should be extinguished by the giving and acceptance of the renewal notes, or that the renewal notes constituted new debts or new transactions or anything more than a postponement of the time of payment of the debt evidenced by the renewal notes and an avoidance of the appearance of carrying overdue notes among the assets. This finding as to intention the master stated was “ not based upon any direct evidence from trust company officer or from any borrower as to such intention.” On a report by a single justice for determination by the full court, it was held, that</p> <p>(1) The subsequent renewals in the savings department of the notes illegally transferred to that department from the commercial department were illegal;</p> <p>(2) The presumption that the giving of a negotiable promissory note discharges a preexisting debt, even if applicable in the circumstances to affect the status of the original notes as between the parties thereto, was merely a presumption of fact and was not conclusive; and the finding by the master that there was no intention that the renewal notes should extinguish the original indebtedness was in effect a finding that the original debt was not extinguished, and overcame such presumption;</p> <p>(3) Such finding by the master could be made on all the facts and inferences to be drawn from them, including the evidence regarding the course of business and the purpose of the transfers, although there was no direct evidence as to such intention;</p> <p>(4) The principle that one seeking a rescission must restore what he has received is not applicable to these proceedings;</p> <p>(5) A decree was ordered directing the transfers sought.</p>