Volume 246 — Massachusetts Reports

<p>Petition, filed in the Superior Court under It. L. c. 109, § 52, as amended (see now G. L. c. 155, § 50), by a majority in number and interest of the shareholders of Savin Hill Yacht Club Association, a Massachusetts corporation incorporated on March 28, 1913, “ for the purpose of providing and maintaining grounds and buildings for the accommodation of the Savin Hill Yacht Club and for such other recreative or social purposes as may be deemed expedient.”</p> <p>The prayer of the petition was “that said Savin Hill Yacht Club Association be dissolved and its property disposed of as the court may order.”</p> <p>The petition was opposed and an answer was filed by the corporation, Savin Hill Yacht Club.</p> <p>In the Superior Court, there was an agreed statement of facts. The petition was heard by Sanderson, J. Material facts and findings and rulings by the judge are described in the opinion. By order of the judge an interlocutory decree was entered (1) “ that the petitioner is entitled to dissolution as prayed for in its petition, and that it is hereby dissolved; ” (2) appointing a “ receiver to take charge of the estate and effects of the petitioner, and to collect the debts and property due and belonging to it; with power to prosecute and defend suits in its name or otherwise; to appoint, agents under him, and to do all other acts which might be done by it, if in being, which may be necessary for the final settlement of its unfinished business; the aforesaid powers of said receiver to continue until otherwise ordered by the court; ” (3) especially authorizing and empowering such receiver “ to sell at public or private sale all real and personal property belonging to the petitioner, and to make, execute and deliver in pursuance of this decree and in the name of the petitioner by himself as receiver any deeds and bills of sale that may be necessary to pass the legal title to said property to the purchaser or purchasers thereof. The purchase price of said property shall thereupon become in- the hands of said receiver a part of the estate and effects of the petitioner.”.</p> <p>Being of opinion that questions of law raised by the respondent and in the interlocutory decree so affected the merits of the controversy that the matter ought, before further proceedings, to be determined by this court, the judge reported the cause, at the request of the respondent and with the consent of the petitioners, to this 'court upon the pleadings, the agreed statement of facts, the respondent’s requests for rulings of law, the judge’s report of findings and rulings, the respondent’s exceptions, and the interlocutory decree for a determination of all questions of law raised by the record, such decree to be entered as justice and equity might require.</p>

<p>Bills and Notes, Interest. Interest. Evidence, Extrinsic affecting writing. Contract, Construction, Validity. Assignment.</p> <p>A negotiable promissory note, by the terms of which the maker promised to pay $40,000 in three years “ with interest quarterly at the rate of eighteen (18) per centum per annum during said term, and for such further time as said principal sum or any part thereof shall remain unpaid, all interest unpaid at maturity to be added to and become a part of the principal and bear interest as herein provided for,” is not ambiguous, and evidence of an application and negotiations, pending the execution of the note and not in terms incorporated in or made a part of its provisions by reference, is not admissible to explain or vary its meaning.</p> <p>By the provisions of the note above described, interest was not to be compounded quarterly and was to be compounded only at maturity.</p> <p>An assignment of an interest under the will of the maker’s father, given by the maker to secure the payment of the note above described, provided that the maker should also assign his interest in certain life insurance policies as further security and from time to time should take out and assign further insurance, and he agreed, “ Any failure on my part to furnish such additional policies of life insurance shall give the right to the Lenders to charge interest upon all sums owing from me to the Lenders at the date of such default at double the rate of interest which the said indebtedness then bears.” Held, that such stipulation should not be held to have been intended as compensation or liquidated damages, or an agreement to pay a larger percentage for a continuance of the loan and extension of time for repayment of advancements, but must be construed, in connection with all the attendant circumstances, as a penalty for the maker’s nonperformance, and that a court of equity would not enforce it because it was unconscionable.</p>

<p>Sale, Conditional. Receiver.</p> <p>A dealer delivered furniture to the proprietor of a hotel under a contract in writing of conditional sale in which it was provided that title to the goods was to remain in the dealer until the full amount of the agreed price was paid, and that, upon a default of payment of “ rent ” continuing for more than thirty days, the dealer might “ without demand or notice, or being deemed guilty of trespass or tort, and without thereby rendering itself liable to refund any sum received by it as rent aforesaid . . . remove said articles.” The hotel proprietor having defaulted in performance, the dealer, in accordance with the terms of the contract, made a demand and gave notice and, thirty days later, entered upon the hotel premises and, with the assent and assistance of the proprietor, marked each article of furniture as his property and then left the goods where they were found, thereafter paying insurance upon them. More than two months later a receiver, appointed in proceedings against the proprietor of the hotel, found the furniture on the premises and claimed title to it. Held, that</p> <p>(1) The acts of the dealer after default constituted a talcing possession of the goods;</p> <p>(2) The act of the dealer in taking possession terminated the contract of conditional sale;</p> <p>(3) A stipulation in the contract that, in the event of the removal of the goods by the dealer because of the default of the hotel proprietor, the dealer could sell the goods “ and may apply the proceeds after payments of cost and expense of finding, moving, keeping and selling them to the payment of the unpaid balance of the full purchase price including interest, rendering the surplus, if any,” to the hotel proprietor, did not require the dealer to sell the goods;</p> <p>(4) As the proprietor of the hotel had no right in the property after possession had been taken by the dealer, the receiver acquired no rights therein;</p> <p>(5) It was not necessary that the dealer should remove the property, he having taken possession of it and it being delivered to him by agreement of all parties.</p>

<p>Water Supply. Middleton. Danvers. Contract, What constitutes.</p> <p>Section 11 of St. 1910, c. 402, did not give to the town of Danvers a right to recover from the town of Middleton one fourth of the expense of a new conduit connecting Middleton Pond with Swan’s Pond, built after the town of Middleton had accepted the provisions of the statute and had elected water commissioners but before it had taken any further steps toward supplying itself with water from a system of its own.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the County of Suffolk on November 21,1921, and afterwards amended, by Frank B. Bemis, Moorfield Storey, Edward M, Benson and Parker Converse as executors of the will of Harry E. Converse, and the first three as trustees under the deed of trust described in the opinion, against the beneficiaries under the will and the deed, for instructions as to what part, if any, of a sum paid by the executors as a federal estate tax assessed upon both the property passing by the deed and by the will, should be paid to the executors by the trustees; and like instructions as to an inheritance tax paid to the State of New Jersey.</p> <p>The suit was heard by Braley, J., upon the amended bill and answers. No question was made but that the trustees should pay to the executors the inheritance tax paid to the State of New Jersey. The single justice ruled that no part of the federal estate tax paid by the executors should be paid to them by the trustees, and reported the suit to the full court for determination.</p>

Contract for $3,000, alleged to be due to the plaintiffs for legal services. Writ dated May 10, 1922. The action was referred to an auditor, the parties agreeing “ that the auditor’s report is to be final on facts.” From the auditor’s findings, it appeared that the plaintiffs had been counsel for a Massachusetts corporation, Bay State Syndicate, Inc., of which the defendant was treasurer and general manager.

<p>Negligence, Street railway.</p> <p>At the trial of an action of tort by a woman against a street railway company for personal injuries alleged to have been received when the plaintiff was “precipitated” from a so called “snake car” of the defendant to the ground through negligence of the defendant, the only evidence was testimony of the plaintiff, which tended merely to show that, when she boarded the ear, she had ample room; that, after she was seated, the car became crowded; that as she approached her destination “ she got up and tried to get near the door and with hard struggling and pulling she managed to get out to the vestibule; that then she got pushed out of the door; that the conductor was standing at his post in the vestibule or centre compartment; that he never said a word; that he stood right there; that when she went through the door, she didn’t know what happened to her; . . . that the conductor . . . started the car right off, and did not move from his post.” A verdict was ordered for the defendant. Held, that the verdict rightly was ordered.</p>

<p>Petition, filed in the Superior Court on February 25, 1918, under G. L. c. 258, c. 81, § 18, for personal injuries alleged to have been sustained by reason of a defect in a portion of the State highway in the town of Beckett known as Jacob’s Ladder.</p> <p>In the Superior Court, the action was heard by Fessenden, J., without a jury. Material evidence is described in the opinion. The judge found for the petitioner in the sum of $600 and ordered the case reported to this court for determination. After the resignation of Fessenden, J., the action was so reported by N. P. Brown, J., the parties agreeing that, if the finding for the petitioner was warranted, judgment should be entered thereon; and that, otherwise, judgment should be entered for the respondent.</p> <p>The case was argued at the bar in September, 1923, before Pugg, C.J., Braley, DeCourcy, Pierce & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.</p>

<p>Writ of Error. Judgment. Practice, Civil, Exceptions, Rescript from Supreme Judicial Court.</p> <p>A dismissal of an action under Rule 63 of the Superior Court (1915) for want of prosecution is a final judgment.</p> <p>A rescript issuing from this court upon exceptions taken by the defendant at the trial in the Superior Court of an action at law, which reads, “ Exceptions sustained,” does not put the record in the Superior Court in such condition that entry of judgment under Rule 57 of the Superior Court (1915) becomes merely a clerical matter; but such a rescript as a matter of praptice means that there shall be a wholly new trial in the Superior Court upon all issues raised by the pleadings.</p> <p>Upon a writ of error issued to determine the validity of a judgment entered for a defendant in an action at law under Rule 63 of the Superior Court (1915), this court cannot consider whether or not its decision, previously rendered, sustaining exceptions, saved by the defendant at a previous trial of the action in the Superior Court, rested upon a ground no longer tenable under a decision of the Supreme Court of the United States thereafter rendered.</p> <p>Rule 63 of the Superior Court (1915) is within the power of the Superior Court, has the effect of law, and is binding on the court and on the parties to actions which come within its scope.</p>

<p>Constitutional Law, Due process of law. Evidence, Competency, Real evidence unlawfully procured. Intoxicating Liquor.</p> <p>Intoxicating liquor in a bottle taken from the person of the proprietor of a store by police officers who entered the store with a search warrant is admissible in evidence against the proprietor of the store at the trial of a complaint charging him with exposing and keeping for sale intoxicating liquor with intent unlawfully to sell the same, such admission not being in violation of the rights of the defendant under art. 12 or under art. 14 of the Massachusetts Declaration of Rights or under art. 4 of the Amendments to the Constitution of the United States. Following Commonwealth v. Welsh, 163 Mass. 372, and Commonwealth v. Wilkins, 243 Mass. 356.</p>

<p>Bill in equity, filed in the Superior Court on January 12, 1922, under G. L. c. 214, § 3, cl. 10, against Meyer Bloomfield and The Travelers Insurance Company, seeking to require the insurance company to pay to the plaintiff a judgment for $2,672.80 procured by her against the defendant Bloomfield for injuries received as described in the opinion.</p> <p>The answer of the defendant insurance company alleged that the policy in question was subject to the following indorsement: “All work incidental and necessary to the conduct of the assured’s business of operating automobile garage, sales agency and service station, including the operation of any style, type or make of automobile for all purposes in such business and for pleasure, use and the renting or hiring, for the carrying of passengers, of automobiles of the private pleasure type subject to call from the garage only but not the operation of taxicabs so-called, ambulances, hotel or other omnibuses, sight-seeing automobiles or jitney busses so-called and not the carrying of property for individuals, co-partnerships or corporations other than the assured excepting such transportation or delivery of goods or merchandise for prospective purchasers as is strictly incidental to the demonstration and sale of commercial automobiles.”</p> <p>In the Superior Court, the suit was heard by Keating, J. The judge found that the insurance company had issued to the defendant Bloomfield a policy of insurance “ which insured him against loss or liability growing out of the operation of said Cadillac car if it was a pleasure car and not a taxicab, and if it was subject to call from the garage only.” Other material facts are described in the opinion. By order of the judge a final decree was entered dismissing the bill. The plaintiff appealed.</p>